Date: 20040520
Docket: T-1168-96
Citation: 2004 FC 739
BETWEEN:
ALLISON G. ABBOTT, MARGARET ABBOTT
and MARGARET ELIZABETH McINTOSH
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CANADIAN PACIFIC HOTELS CORPORATION
Intervenor
Assessment Officer
[1] Paragraphs [1] to [3] of the Reasons for Order of the Prothonotary, John A. Hargrave, dated March 26, 2001 (hereafter, the "Prothonotary's decision") read:
[1] This action by representative Plaintiffs initially arose out of various leases granted to Riding Mountain National Park cottages owners. The Crown, to put the simplest face on the action, seeks to set aside as void various leases saying, in effect, that for some sixty years the Crown, mistakenly and improperly, granted leases with rights of renewal and thus, subject to the doctrine of severability, the leases are null and void.
[2] The action took on a broader aspect with the intervention of Canadian Pacific Hotels Corporation ("CP Hotels"), who hold leases, some going back to the 1890s, with rights of renewal, at Lake Louise and in Banff National Park.
[3] In the hope of avoiding an extensive trial, the Defendant seeks determination of two points of law:
1. Did the Defendant have legal authority to grant the Plaintiffs leases containing perpetual renewal clauses at the time such leases were granted?
2. If the Crown had no legal authority to grant the Plaintiffs leases containing perpetual renewal clauses at the time such leases were granted, is there a basis at law as disclosed in the Amended Statement of Claim available to the Plaintiffs in relation to the perpetual renewal clauses as against the Defendant, based on the course of conduct of the parties in relation to the leases since their original granting?
The answer to these questions will also impact on the position of the Intervenor, CP Hotels, the holder of highly developed leased land at Banff and at Lake Louise. The determination begins with consideration as to precisely what legislation, acts, and regulations were in effect governing the lease granting powers of the Crown. However, before considering these questions, both of which I answer affirmatively, I will set out some of the background and touch upon some pertinent case law.
The associated order awarded costs to the Plaintiff and to the Intervenor payable at the conclusion of the action. There has not yet been a trial. The Intervenor presented its revised bill of costs for this event and several other interlocutory events. I issued a timetable for written disposition of the assessment of costs.
[2] The Defendant argued generally that counsel retained by the Intervenor represents it in all matters relating to its hotels with particular regard to lease negotiations with the Crown. Said counsel's resultant expertise and specific knowledge mean that this litigation required less effort in turn warranting only mid-range allowances for counsel fees under Column III.
[3] The Intervenor argued generally further to Rules 409 and 400(3)(a): result of the proceeding, (c): importance and complexity of the issues, (g): amount of work and (o): any other matter considered relevant that the financial ramifications, the international reputation of its hotels and the associated tourism implications for Canada, in combination with the considerable research required for evidence and legislative provisions dating back to the late 19th century, warrant maximum amounts for counsel fees. The Intervenor conceded the Defendant's point concerning the special expertise of its counsel, but argued that the historical review of national parks legislation required herein to address the Crown's claim, ie. that perpetual renewal clauses in Crown leases were void, was outside the normal ambit of lease negotiations.
Item 1: 7 units claimed for Motion Record for leave to intervene; available range 4-7 units (hereafter, the numbers in brackets following the claimed units represent the available range
Item 6: 3 units claimed per hour (2 hours) for appearance March 23, 2000, on motion for leave to intervene (1-3)
Item 24: 5 units claimed for travel by counsel to the motion
Assessment
[4] The Defendant argued that the March 23, 2000 order granting leave to intervene was silent as to costs, that the motion itself sought no costs, that the record discloses that the Intervenor concedes no costs are assessable for this interlocutory event and that Wilson v. R., 2000 D.T.C. 6267 (A.O.), holds that an order silent as to costs precludes a claim for assessed costs. I agree and disallow these claimed counsel fees.
Item 8: 5 units claimed for preparation to examine J. Low (2-5)
Item 9: 3 units claimed per hour (2 hours) for attendance in Calgary on April 14, 2000
re J. Low (0-3)
Item 8: 5 units claimed for preparation to re-examine J. Low (2-5)
Item 9: 3 units claimed per hour (2 hours) for attendance in Winnipeg on May 1, 2002
re J. Low (0-3)
Item 8: 5 units claimed for preparation to examine P. Woods (2-5)
Item 9: 3 units claimed per hour (1 hour) for attendance re P. Woods (0-3)
Item 24: 5 units claimed for travel by counsel to Winnipeg re examination of J. Low and
P. Woods (1-5)
Item 13(a): 5 units claimed for preparation for the hearing on May 11, 2000 (2-5)
Item 24: 5 units claimed for travel by counsel for the hearing on May 11, 2000 (1-5)
Item 14(a): 3 units claimed per hour (4 hours) for attendance on May 11, 2000 (2-3)
$3,007.34 claimed for disbursements: long distance tolls ($224.44); photocopies ($1,015.50); facsimiles ($131.00); couriers ($250.51); travel ($651.85); transcripts ($537.80) and GST ($196.74)
Item 5: 7 units claimed to respond to the motion appealing the Prothonotary's decision
(3-7)
Item 6: 3 units claimed per hour (4 hours) for appearance for the motion (1-3)
Item 24: 5 units claimed for travel by counsel to the motion venue (1-5)
Item 13(a): 5 units claimed to prepare for the motion appealing the Prothonotary's decision (2-5)
Item 14(a): 3 units claimed per hour (4 hours) for appearance on the motion (2-3)
$4,648.13 claimed for disbursements: long distance tolls ($67.30); photocopies ($2,198.05); facsimiles ($54.00); couriers ($177.36); travel ($1,802.90); computer research ($44.44) and GST ($304.88)
The Defendant's Position
[5] The Defendant suggested low to mid-range allowances for the counsel fee items and opposed the attempt by the Intervenor to add a disbursement of $1,126.71 for counsel's flight on May 3, 2000, to Winnipeg to complete the examination. The Defendant's submissions in opposition noted that the Intervenor's motion for directions on costs, resulting in the order dated May 15, 2003 (hereafter the "costs decision"), had specifically sought fees and disbursements for counsel to travel to the hearing on May 11, 2000, which resulted in the Prothonotary's decision, as well as for counsel to travel to the hearing on October 10, 2001, which resulted in the Court's decision dated February 25, 2002, dismissing the Defendant's appeal (hereafter the "appeal decision") from the Prothonotary's decision. The costs decision allowed said travel fees for the October 10, 2001 hearing, but not for the May 11, 2000 hearing. The Defendant conceded that I have the discretion to allow travel disbursements without a prior direction from the Court, but not as here where such a direction was sought and denied. Therefore, any travel fees and disbursements associated with the May 11, 2000 hearing should be disallowed. As the evidence does not establish whether the $651.85 claimed for travel relates to attendance for examination pursuant to the order dated May 1, 2000, which authorized such costs, or to attendance on the May 11, 2000 hearing, which costs were denied, the Intervenor has not met the requisite burden to permit allowance of said $651.85. The Defendant argued that the evidence supports only $651.85 of the $1,802.90 for travel associated with the October 10, 2001 hearing. The Defendant argued that the evidence supports only a reduced amount of $1,009.10 for photocopies instead of the $1,015.50 claimed.
The Intervenor's Position
[6] The Intervenor argued that the order dated May 1, 2000, clearly provided for the costs of re-attendance. The Intervenor argued further to Inverhuron & District Ratepayers' Assn. v. Canada, [2001] F.C.J. No. 666 (A.O.), International Brotherhood of Locomotive Engineers v. Cairns, [2002] F.C.J. No. 585 (A.O.), and Ayangma v. Canada, [2001] F.C.J. No. 981 (A.O.) that assessment officers can and do authorize travel fees and disbursements in the absence of directions from the Court. The Intervenor argued that the large amounts of historical material relevant for disposition of this matter warrant the claim for photocopies.
Assessment
[7] The bill of costs shows May 1, 2002, for the examination of J. Low, but I think that materials in the record would suggest it occurred in 2000. It is a basic principle of litigation that a party shall not prejudice its opponent as a function of the former's fragmented presentation of its case. The May 1, 2000 order clearly provided for travel costs for the attendance of counsel on the re-examination. The associated $1,126.71, although not listed in the bill of costs, was clearly identified over 3½ years later in the lead materials provided for in my timetable. Said timetable permitted modifications of the initial bill of costs. I think that the Defendant could not have been taken completely by surprise and was not prejudiced in the circumstances. I allow the $1,126.71 claimed as the evidence led does link it to the re-examination. Item 24 addresses counsel fees, but not disbursements. The discretion reserved to the Court to authorize assessment officers to allow item 24 is exercised independently of the discretion vested in me per Rule 405 and Tariff B1 to address disbursements. There is no implied caveat impeding me from authorizing travel disbursements in the absence of an item 24 direction from the Court for fees for travel by counsel. However, the Defendant is correct that a litigant cannot claim travel disbursements if it has previously raised them by motion with the Court and has been refused. The evidence shows $1,126.71 for each flight to the re-examination and to the hearing on May 11, 2000. Therefore, it is not clear whether the $651.85 includes costs precluded in these circumstances for the May 11, 2000 hearing. It is perhaps a coincidence that adding the amounts for room and airfare in the evidence for the October 10, 2001 hearing (for which travel costs were authorized) gives an identical $651.85. However, that observation is misleading because the evidence indicates that the room charges exclude GST, but the airfare includes GST. The evidence for the airfare of $1,126.71 above shows $0.00 for GST. In the circumstances, I allow $651.85 only once and designate it for the October 10, 2001 hearing. I allow the reduced total of $1,009.10 for photocopies suggested by the Defendant instead of the $1,015.50 claimed. I have adjusted GST totals in the revised bill of costs consistent with my comments above.
[8] There has not yet been a trial in this action, although the record discloses ongoing pre-trial activity. Several of the fee items claimed here ordinarily would not be assessable until after trial and are not ordinarily triggered by an interlocutory order, ie. such as items 13 and 14. However, notwithstanding the provision in the March 26, 2001 order for costs at the conclusion of the action, I think that, subject to disposition of the Defendant's concerns above, the Intervenor has properly advanced these fee items. That is, the wording of the Intervenor's motion for leave to intervene proposed limiting its participation to the hearing of the application addressing the questions of law. The Court's order dated March 23, 2000, granting leave to intervene, did not authorize a broader role. Rule 220 prescribes two steps for determination of questions of law. Although the process appears to be interlocutory in nature, Rule 220(3) provides that the determination of a question of law "is final and conclusive for the purposes of the action, subject to being varied upon appeal". Rule 51(1), providing for an appeal of a prothonotary's order by motion to a judge of the Federal Court, does not diminish the impact of the wording of the Federal Courts Act, s. 27(1)(b) characterizing the determination of a question of law as a "judgment" and listing it separately from the "interlocutory judgment" addressed in s. 27(1)(c). Further, I think that my conclusions are consistent with the considerations in the appeal decision addressing the standard of review of decisions of a prothonotary, ie. concerning questions vital to the final issue of the case, and the distinctions between final versus interlocutory events.
[9] I concluded at paragraph [7] in Bruce Starlight et al. v. Her Majesty the Queen, [2001] F.C.J. 1376 (A.O.) that the same point in the ranges throughout the columns in the Tariff need not be used as each item for the services of counsel must be considered in its own circumstances and some generalization is required between the available values in ranges. I am not convinced that maximum values are appropriate for every item 8 and 9 in these circumstances. For the initial examination of J. Low, I allow 5 and 3 units respectively as claimed for items 8 and 9. For his re-examination, I allow 3 and 2 units respectively for items 8 and 9. For the examination of P. Woods, I allow 4 and 2 units respectively for items 8 and 9. The difficulty generally with the assessment of item 24 is that said item does not particularly address something which could be said to be a function of a lawyer's professional expertise, but rather his time spent in a non-professional mode, ie. in transit. Therefore, one aid in setting an appropriate allowance might be to consider the importance, difficulty or experience of counsel relative to the particular event associated with the travel, be it an examination, a motion or the trial. For item 24 associated with the re-examination of Mr. Low and examination of Mr. Woods, I allow 4 units. For the reasons above, I must disallow the item 24 claim for the May 11, 2000 hearing.
[10] I think that this action raises issues of concern to the public interest. The Intervenor's participation here in the determination of the questions of law was important: I allow the item 13(a) and 14(a) claims as presented at the maximums relative to both the Prothonotary's decision and to the appeal decision. I allow the item 24 claim relative to the appeal hearing at 4 units. The Defendant did not object to the Intervenor's claims for items 5 and 6 allowances notwithstanding the apparent duplication relative to the item 13(a) and 14(a) claims. In the circumstances, I allow only the 4 and 2 units (per hour for 4 hours) respectively conceded for items 5 and 6. Except as noted above, the disbursements were conceded by the Defendant and are allowed as presented.
Item 5: 7 units claimed for preparation of motion for extension of time and abridgment
of the time for service (3-7)
Item 5: 7 units claimed for preparation of motion to compel answers to undertaking and to
re-attend for examination (3-7)
The Parties' Positions
[11] The Defendant noted that the Intervenor's motion for an extension of time to file affidavits did not seek costs. The Order dated April 25, 2000 awarded costs in the cause and therefore, per Eastern Canada Towing Limited v. The "Algobay" et al., [1980] 2 F.C. 366 (F.C.T.D.), item 5 is assessable and payable only after the trial of this action. The Defendant argued that, as no costs were sought or awarded further to the Intervenor's motion to compel answers, nothing should be allowed for item 5. The Intervenor argued that Eastern Canada Towing Limited, supra, can be distinguished because the Court there was faced with the unusual circumstances of an applicant seeking and being given certain disbursements to be divided between bills of costs respectively for an action and an appeal. In any event, the Intervenor's participation was limited to the determination of the questions of law, which is now concluded and final. As for the motion to compel answers, the Intervenor noted that this passage in the May 1, 2000 order, "...Intervenor submits it ought, in addition to having Mr. Low produced without further costs, to have the re-attendance costs of counsel paid by the Defendant... This is fair comment...", contemplates associated costs.
Assessment
[12] Consistent with my analysis above for Rule 220(3), I agree that the Intervenor is entitled to costs for the item 5 claim associated with the motion for an extension of time, which I allow at a reduced 5 units. However, relative to the item 5 claim associated with the motion to compel answers, the problem for the Intervenor is that the order dated May 1, 2000 reads, "Counsel having agreed on the production... and on the re-attendance of Mr. Low, the only issue is that of expenses associated with the re-attendance...", and then goes on to address those costs, but not the costs of the motion itself. That is, the Table in Tariff B lists discrete services of counsel for indemnification between litigants, ie. item 5 addresses this motion and item 8 addresses preparation for the examination. The order addressed the latter item, but not the former, leaving me without jurisdiction to allow anything for this item 5. That is, Rule 400(1), which vests full discretionary power in the Court over awards of costs, means that orders and judgments must contain visible directions that costs have been awarded. Given the Federal Courts Act, ss. 4 and 5.1(1) defining the Court and Rule 2 of the Federal Court Rules, 1998 defining an assessment officer, the absence of that exercise of prior discretion by the Court leaves me without jurisdiction under Rule 405 to assess costs. In Webster v. Canada (Attorney General), [2003] F.C.J. No. 1652 (A.O.), I concluded that the Rule 400(1) discretion in the court for interlocutory costs is exercised independently from the result of the judgment, except where expressly provided by language such as "costs in the cause". It is the May 1, 2000 order which had to authorize costs of the motion. It did not and I must therefore disallow the claimed item 5.
[13] The Defendant claimed the maximum 6 units for costs of the assessment, further to Rule 408(3), as a function of excessive claims by the Intervenor, including costs to which it had previously conceded no entitlement. In the alternative, the Defendant suggested that each side bear its own costs of the assessment. The Intervenor argued for maximum costs of the assessment on the basis that the costs decision should have resolved all issues, that the Defendant resisted disposition by consent, and that the Intervenor cannot be penalized by its efforts to settle issues of costs. I allow 4 units for item 26 in the circumstances. The revised bill of costs of the Intervenor, presented at $21,065.47, is assessed and allowed at $16,393.08.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, BC
May 20, 2004
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1168-96
STYLE OF CAUSE: ALLISON G. ABBOTT et al.
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CANADIAN PACIFIC HOTELS CORPORATION
Intervenor
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL
APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
SOLICITORS OF RECORD:
Thompson Dorfman Sweatman for Plaintiffs
Winnipeg, MB
Morris Rosenberg
Deputy Attorney General of Canada for Defendant
agent Duboff Edwards Haight & Schachter
Winnipeg, MB
MacLeod Dixon LLP
Calgary, AB for Intervenor