Ottawa, Ontario, September 8, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
the PUBLIC SERVICE ALLIANCE OF CANADA
and the UNION OF PUBLIC SERVICE EMPLOYEES
Defendants
REASONS FOR ORDER AND ORDER
[1] On January 19, 2006, the defendants’ motions for summary judgment were granted dismissing the action brought by Josephine E. Marshall (plaintiff) against Her Majesty the Queen (defendant Crown), as well as the Public Service Alliance of Canada and the Union of Public Service Commission Employees (defendant unions). Further, the plaintiff’s amended statement of claim was struck out. As per the Court’s order, both the defendants and the plaintiff filed submissions on costs.
RELEVANT FACTS
[2] The plaintiff first commenced the action in 1992, claiming declaratory relief and damages in relation to her employment with the federal public service between 1972 and 1986. She claimed for wrongful dismissal, workplace injuries, stress caused by mistreatment and health problems allegedly related to her employment. The plaintiff was a member of the defendant unions at all material times, and subject to a collective agreement.
[3] The Court found that the plaintiff's claims were properly the subject of the statutory grievance procedure set out in the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 and the Court would not exercise its residual jurisdiction over the matter.
ANALYSIS FOR COSTS
[4] Rules 400 to 422 deal with the issue of costs on applications for judicial review as well as in relation to actions. Rule 400(1) provides that the Court has full discretionary power over the amount and allocation of costs, as well as the determination as to who should pay these costs. Rule 400(3) provides an extensive list of factors that may be considered in the exercise of the Court's discretion. However, the Court is not limited to these factors. Rule 400(3) states the following:
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400. (3) In exercising its discretion under subsection (1), the Court may consider (a) the result of the proceeding; (b) the amounts claimed and the amounts recovered; (c) the importance and complexity of the issues; (d) the apportionment of liability; (e) any written offer to settle; (f) any offer to contribute made under rule 421; (g) the amount of work; (h) whether the public interest in having the proceeding litigated justifies a particular award of costs; (i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding; (j) the failure by a party to admit anything that should have been admitted or to serve a request to admit; (k) whether any step in the proceeding was (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; (l) whether more than one set of costs should be allowed, where two or more parties were represented by different solicitors or were represented by the same solicitor but separated their defence unnecessarily; (m) whether two or more parties, represented by the same solicitor, initiated separate proceedings unnecessarily; (n) whether a party who was successful in an action exaggerated a claim, including a counterclaim or third party claim, to avoid the operation of rules 292 to 299; and (o) any other matter that it considers relevant.
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400. (3) Dans l’exercice de son pouvoir discrétionnaire en application du paragraphe (1), la Cour peut tenir compte de l’un ou l’autre des facteurs suivants : a) le résultat de l’instance; b) les sommes réclamées et les sommes recouvrées; c) l’importance et la complexité des questions en litige; d) le partage de la responsabilité; e) toute offre écrite de règlement; f) toute offre de contribution faite en vertu de la règle 421; g) la charge de travail; h) le fait que l’intérêt public dans la résolution judiciaire de l’instance justifie une adjudication particulière des dépens; i) la conduite d’une partie qui a eu pour effet d’abréger ou de prolonger inutilement la durée de l’instance; j) le défaut de la part d’une partie de signifier une demande visée à la règle 255 ou de reconnaître ce qui aurait dû être admis; k) la question de savoir si une mesure prise au cours de l’instance, selon le cas : (i) était inappropriée, vexatoire ou inutile, (ii) a été entreprise de manière négligente, par erreur ou avec trop de circonspection; l) la question de savoir si plus d’un mémoire de dépens devrait être accordé lorsque deux ou plusieurs parties sont représentées par différents avocats ou lorsque, étant représentées par le même avocat, elles ont scindé inutilement leur défense; m) la question de savoir si deux ou plusieurs parties représentées par le même avocat ont engagé inutilement des instances distinctes; n) la question de savoir si la partie qui a eu gain de cause dans une action a exagéré le montant de sa réclamation, notamment celle indiquée dans la demande reconventionnelle ou la mise en cause, pour éviter l’application des règles 292 à 299; o) toute autre question qu’elle juge pertinente.
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Particular circumstances
[5] The plaintiff mentions that she is an unmarried, elderly woman of modest means. She lives by herself and her sole source of income is pension benefits. She submits that an award of costs against her would greatly impact upon her ability to provide the basic necessities of life for herself and would cause extreme and undue hardship. She further notes that she has no reasonable way of paying a significant order of costs against her and that if such an order were rendered it would discourage other individual claimants of limited income from attempting to access justice.
[6] The defendant unions note that despite all the concerns the plaintiff has regarding costs, she has filed an appeal against the judgment of this Court. The defendant unions also note that it is fundamentally inconsistent for the plaintiff to require the defendants to bear the burden of her proceedings when she continues to litigate these matters at every opportunity.
[7] As noted by the defendant unions, the Court has already made numerous orders of costs against the plaintiff in the course of these proceedings. The Court did not accept the plaintiff’s particular circumstances as justifying a denial of costs in those cases. I agree with the defendant unions and see no reason why a different approach should be applied now.
Disability
[8] Contrary to the submissions of the Crown, the plaintiff asserts that she never had an unwillingness to bring her case to trial. She alleges that this case was not moved forward at times due largely to the fact that she was self-represented, was often in poor health and was under a legal disability affecting her cognitive abilities (which eventually led the Court to order her to retain counsel).
[9] The defendant unions argue that the Court did not order the plaintiff to retain counsel because of her legal disability. The order of the Court dated August 20, 2003, which required the plaintiff to appoint a solicitor of record in this case, found as follows:
Indeed, I am unable to assess or determine, on that basis, the extent or nature of Ms. Marshall’s disability or to determine whether Ms. Marshall may be said to be under a legal disability within the meaning of Rules 115 or 121 of the Federal Court Rules, 1998. I can only conclude that she is unable to represent herself without assistance and without ongoing prejudice to the defendants, which cumulates with time.
[10] The defendant unions claim that it is clear from the above order that the plaintiff was required to retain counsel because this was the only way to ensure that this matter would proceed in a timely manner. It is not, as argued by the plaintiff, because she was under a legal disability.
[11] To support their position, the defendant unions note that, by notice of motion dated September 2, 2003, the plaintiff expressly sought an order appointing counsel to represent her on the basis that she was under a legal disability. The plaintiff was attempting to rely upon Rule 121 on the basis that she was under a legal disability. However, by order dated September 29, 2003, the Court rejected that motion on the basis that the plaintiff had failed to comply with the Court’s earlier order requiring that any further motions must be brought by her duly appointed solicitor.
[12] I agree with the defendant unions and confirm that the Court did not render an order requiring the plaintiff to retain counsel due to her alleged disabilities.
Delay
[13] The defendant Crown notes that Rule 400(3)(i) makes clear that delay can be taken into account in determining costs. The defendant Crown acknowledges that defence of this protracted action has cost it a significant amount of resources. As such, the defendant Crown asserts that this Court should take the delay into consideration in evaluating the costs.
[14] The plaintiff notes that the present matter was not dismissed due to delay. That is, the matter was dismissed due to a jurisdictional issue that the defendants raised pursuant to the decision of the Supreme Court of Canada in Vaughn v. Canada, [2005] S.C.J. No. 12 (Vaughn), rendered in February 2005. The plaintiff submits that but for this particular decision, her case would have continued. The fact that the matter was slow moving allowed the defendants to successfully have the claim dismissed at summary judgment based on recent case law, thereby avoiding the cost of defending the claim and the risk of an order against them.
[15] The defendant unions argue that a jurisdictional bar to the plaintiff’s claim existed well before Vaughan was ever released. In this regard, the defendant unions rely upon the judgment of the Supreme Court of Canada in Gendron v. Supply & Services Union of the Public Service All, [1990] S.C.J. No. 55 (Gendron).
[16] Regardless of whether the Court’s decision was based on recent case law, or case law existing in 1990, the current proceedings regarding this matter have been going on for over 13 years. There have been countless delays regarding the present matter. These delays have resulted in numerous status reviews, motions for extension of time, case management directives and conferences, all to push the case forward. These matters have been a drain on the resources of the Court and caused the defendants to incur significant costs.
[17] The defendant unions allege, and I agree, that these costs were due to the plaintiff’s failure to give sufficient priority to the prosecution of her action. As such, I find that the numerous delays should be a factor considered and reflected in an award of costs.
Written offers
[18] The defendant Crown notes that it attempted to settle the plaintiff’s claim on two occasions. The first was an offer made at a settlement conference on May 24-25, 2000, presided over by Madam Prothonotary Aronovich. The second was by way of a written offer to settle, dated February 2, 2005. On both occasions, the Crown offered $30,000.00, all inclusive. Both offers were summarily rejected by the plaintiff. These offers were not left open following their rejection by the plaintiff. It is submitted by the defendant Crown that the rejection of these compromise offers was unreasonable.
[19] With respect to the Crown’s submissions regarding written offers, the plaintiff submits that the Crown revoked said offers and as a result, this issue is of no relevance. Furthermore, with respect to the nature of the plaintiff’s claim, it is submitted that the amount offered was unreasonably low.
[20] The Federal Court of Appeal in Francostell Can. Inc. v. “African Cape” (The), 2003 FCA 119, noted that an offer of settlement that did not come within rule 420 should nevertheless have been taken into account in exercising the discretion to award costs under rule 400. Even though the offers in the present matter were not left open following their rejection by the plaintiff, they must nonetheless be taken into consideration in the assessment of costs.
Disbursements
[21] The plaintiff alleges that there is no reason for the defendant unions not to have used local counsel, at least for the motion on summary judgment. Furthermore, the defendants’ positions were virtually the same and the matter was not particularly complicated. As such, the defendants should not receive costs for disbursements.
[22] The defendant unions submit that the present matter was not as average in importance and complexity as alleged by the plaintiff. They note that the present matter was based on the extensive admissions made by the plaintiff in the conduct of discoveries. It was necessary to obtain those admissions because the plaintiff’s claim was not always clear as to the nature or basis of liability she alleged. The evidence from the discovery process was an essential element of the defendant unions’ motion. As such, it is submitted that there is no reason that the cost of discoveries should not be included here.
[23] Contrary to the plaintiff’s assertions, the defendant unions’ state that their position was not based on the same issues as the Crown. They mention that their position was based on a distinct issue – namely, the fact that the plaintiff’s claim against the unions was based on a violation of a duty of fair representation which ought to be addressed in another forum. In fact, one of the grounds of appeal of the plaintiff is that the Court did not deal with the unions’ arguments. The defendant unions submit, and I agree, that the plaintiff cannot take this position on appeal and maintain that the parties did the same work.
[24] I find that it was reasonable for the defendant unions to use counsel from Ottawa given that their headquarters were located there. Furthermore, as was noted by the defendant unions, many of the key union representatives that the plaintiff dealt with throughout this period of time were based in Ottawa.
Conclusion
[25] I find that the defendants should be awarded their costs in accordance with the regular column of the Tariff B (Column III).
ORDER
THIS COURT ORDERS:
The defendants are awarded their costs in accordance with the regular column of the Tariff B (Column III).
“Pierre Blais”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1029-92
STYLE OF CAUSE: Josephine E. Marshall v. Her Majesty the Queen, the Public Service Alliance of Canada and the Union of Public Service Employees
DATE OF HEARING: November 1, 2005
REASONS FOR ORDER AND ORDER: BLAIS J.
APPEARANCES:
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Mr. Kenneth MacLean
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Mr. James Gulvaldsen-Klaassen
Mr. David Yazbeck
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CROWN
FOR THE DEFENDANT UNIONS |
SOLICITORS OF RECORD:
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Mr. Kenneth MacLean Boyne Clarke Halifax, NS
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John H. Sims, Q.C. Deputy Attorney General of Canada Halifax, NS
Mr. David Yazbeck Raven, Cameron, Ballantyne & Yazbeck LLP Ottawa, ON
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CROWN
FOR THE DEFENDANT UNIONS
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