BETWEEN:
and
ASSESSMENT OF COSTS – REASONS
Assessment Officer
[1] The application for judicial review of a decision of the Commissioner of the Correctional Service of Canada to uphold an earlier decision to transfer the Applicant from a medium to a maximum security penitentiary was dismissed with costs. I issued a timetable for written disposition of the assessment of the Respondent’s bill of costs.
I. The Respondent’s Position
[2] The Respondent argued that the claimed total of $3,263.29 for costs is reasonable and fair in the circumstances of this case, i.e. the Court’s finding that the decision to transfer the Applicant was not patently unreasonable. Although entitled to do so, the Respondent is not claiming item 26 counsel fees (assessment of costs). Relative to the significant amount of time required to prepare for and to argue this matter, the Respondent’s conduct does not warrant any reductions, further to Rules 409 and 400(3) factors, of the maximum amounts claimed for counsel fees. The Applicant’s asserted lack of resources is irrelevant: see Chaperon v. Canada, [1992] 3 F.C. D-9 (T.O.).
II. The Applicant’s Position
[3] The Applicant argued further to Rules 409 and 400(3)(c) (importance and complexity) that the underlying facts, i.e. he has served approximately 20 years of his life sentence and does not have a release date, reinforce the importance of this proceeding to the Applicant, i.e. to confirm the lawfulness of the transfer decision because of its potential negative impact on conditional release considerations. That is, paragraph [32] of the Court’s decision, reported at [2005] F.C.J. No. 2136 (F.C.), confirmed that the subject transfer as a function of certain allegations of misconduct constituted a punishment. Counsel for the Respondent was senior in status with considerable experience in correctional law matters and therefore handled this matter with ease.
[4] The Applicant argued further to Rule 400(3)(e) (written offer to settle) that the circumstances here precluded any middle ground, i.e. paragraph [19] of the Court’s decision above referring to his increased security classification, to several reliable reports of his drug trafficking and threats with weapons, to his admission of uncontrollable drug use and to his past record. That the Applicant submitted to the grievance procedure, and that the Respondent ignored an internal recommendation to return the Applicant to medium security and instead proceeded on an amended grievance, indicate the latter’s willingness to settle. Further, the evidence is that the impecunious state of the Applicant did not prevent him from offering to pay costs at the rate of $2.00 every two weeks. Relative to Rule 400(3)(h) (public interest), although the Court found that he had not been treated in an arbitrary fashion, it was arguable and a matter of public interest that he had been treated inconsistently by federal authorities. For these various reasons, the maximum claimed amounts for counsel fees should be reduced to the minimum amounts permitted by Tariff B.
III. Assessment
[5] The Applicant did not assert any objection to the claimed disbursement total of $1,073.29, which I find reasonable in these circumstances and allow as presented. The same applies to counsel fee item 25 (services after judgment). In Bow Valley Naturalists Society et al. v. Minister of Canadian Heritage et al., [2002] F.C.J. No. 1795 (A.O.), I considered the relevance of public interest for assessments of costs and concluded that the application of Rules 409 and 400(3) factors against the interest of successful litigants would require carefully considered discretion. That a judgment for costs does not accord the unsuccessful litigant special consideration relative to costs as a function of public interest does not preclude me from applying Rules 409 and Rule 400(3)(h) (public interest) to minimize assessed costs. The Applicant’s argument is compelling. However, I find nothing to suggest that the Court’s analysis and findings concerning his institutional treatment would engage the public interest, i.e. by establishing precedent so pervasive as to significantly affect or alter the treatment of prisoners in the future. That is, the Applicant’s interest in the outcome here was really of significance to only himself, i.e. the development of the best position for his early release.
[6] The Court having exercised its discretion under Rule 400(1) to award costs, I do not think that financial hardship falls within the ambit of “any other matter” in Rule 400(3)(o) as a factor relevant and applicable by an assessment officer, further to Rule 409, to minimize assessed litigation costs. As well, I discount offers to settle as a factor one way or the other. The Applicant was about 20 years into a life sentence, including two years in segregation, and was convinced that the transfer decision would significantly impair his bids for conditional release. Given that his challenge was not against a decision denying him conditional release, but rather against a decision which could be part of the record before, and a factor applied by, those officials considering future bids for conditional release, I doubt that there was much, if any, possibility here for achieving middle ground. Although I discount here, as a factor to minimize assessed costs, the experience of the Respondent’s counsel, I do however find that complexity as a factor should result in counsel fees at less than the maximum amounts permitted in the tariff.
[7] I concluded at paragraph [7] in Starlight v. Canada, [2001] F.C.J. No. 11376 (A.O.) that the same point in the ranges throughout the tariff need not be used, as each item for the services of counsel is discrete and must be considered in its own circumstances. As well, broad distinctions may be required between an upper versus lower allowance for available ranges. The issues identified in paragraph [19] of the Court’s decision above, i.e. whether the transfer decision was patently unreasonable and was the Applicant’s right to procedural fairness breached, can be difficult to address. Here, the Court seemed to have little difficulty in arriving at a decision based on the record before it. I allow items 2 (respondents’ record), 13(a) (preparation for hearing) and 14(a) (appearance at hearing) (available ranges 4 - 7, 2 - 5 and 2 - 3 units respectively / unit value = $120.00) at 5, 2 and 2 units respectively. The Respondent’s bill of costs, presented at $3,263.29, is assessed and allowed at $2,453.29.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-138-05
STYLE OF CAUSE: KURT HIEBERT v. AGC
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
WRITTEN REPRESENTATIONS BY:
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John Dillon |
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Jeff Anderson |
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SOLICITORS OF RECORD:
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John Dillon Barrister & Solicitor Kingston, ON
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John H. Sims, Q.C. Deputy Attorney General of Canada |