Date: 20021219
Docket: A-642-99
Neutral citation: 2002 FCA 515
BETWEEN:
BOW VALLEY NATURALISTS SOCIETY
and BANFF ENVIRONMENTAL ACTION
AND RESEARCH SOCIETY
Appellants
- and -
MINISTER OF CANADIAN HERITAGE
JOHN ALLARD ACTING SUPERINTENDENT
FOR KOOTENAY, YOHO, AND LAKE LOUISE
FIELD UNIT OF PARKS CANADA, and
CANADIAN PACIFIC HOTELS CORPORATION
Respondents
Assessment Officer
[1] A copy of these reasons is filed today in court file T-1209-98 and applies there accordingly. The Appellants sought judicial review in the Trial Division of a determination by Parks Canada that the addition of a meeting facility to the Chateau Lake Louise in Banff National Park was not likely to cause significant adverse environmental effects. The application was dismissed with costs to the Respondent, Canadian Pacific Hotels Corporation (hereafter, the Respondent). Subsequently, upon application, the Trial Division dismissed a motion for increased costs, but did direct costs for second counsel on the same basis as first counsel and travel costs for counsel to attend the hearing. The Federal Court of Appeal dismissed the appeal against these decisions with costs. I issued a timetable for written disposition of the bill of costs of the Respondent in each file.
The Appellants' Position
[2] The Appellants argued per Rules 409 and 400(3)(h) that the public interest in the integrity of Banff National Park, Canada's oldest national park and a UNESCO Rocky Mountain Parks World Heritage Site, warrants a general reduction of the Respondent's costs. The Appellants' argued further to Johns Manville International, Inc. v. Deputy M.N.R., Customs and Excise, [1999] 3 F.C. 95 at para. 61 (F.C.T.D.) upheld [2000] 4 F.C. 404 (F.C.A.); Early Recovered Resources Inc. v. Gulf Log Salvage Co-Operative Assn. [2001] F.C.J. No. 1666 at para. 13 (A.O.); Canastrand Industries Ltd. v. "Lara S" (The) [1995] F.C.J. No. 1157 at para. 8 (T.O.) and Harris v. Canada [2001] F.C.J. No. 1867 at paras. 220 and 223 (F.C.T.D.) that litigation addressing proper administration of statutory schemes is in the public interest and that discretion can be exercised in the assessment of associated costs with that public interest in mind. The Appellants asserted that they meet the threshold, posed by Canadian Council of Churches v. Canada (M.E.I.), [1992] 1 S.C.R. 236; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 and Carpenter Fishing Corp. v. Canada [1999] F.C.J. No. 393 at para. 10, for public interest litigants not being a frivolous or vexatious drain on judicial resources. An assessment of costs at the lowest end of Column III ranges would strike the appropriate balance between partial indemnification of the successful Respondent and the positive impact of public interest litigants on the close scrutiny of statutory schemes.
[3] Relative to the bill of costs in the Trial Division, the Appellants argued per Wilson v. Canada [2000] F.C.J. No. 506 at para. 15 (A.O.) that nothing should be allowed for item 4 (preparation of motion) and 5 (appearance) claims because the interlocutory orders were silent as to costs and an assessment officer cannot assume the Court's Rule 400(1) jurisdiction to award costs. The Appellants argued that only the minimum 2 units under item 8 (preparation for cross-examination) and nothing under item 9 (attendance) should be allowed because the Respondent took no position on the motion to introduce the supplemental affidavit of Alan Keene and asked no questions during his cross-examination by the government Respondents. The Appellants argued per Starlight v. Canada [2001] F.C.J. No. 1376 at para. 7 (A.O.) and Williams v. Canada (M.N.R.) [2001] F.C.J. No. 249 at para. 13 (A.O.) that the presence of two counsel simplified the work for one another and therefore, per Rule 400(3)(g), the lower value in the available range of 2-3 units should be used for items 14(a) and (b) (appearances of first and second counsel respectively). The presence of the government Respondents, which simplified the work of the Respondent's counsel, also warrants reduction of items 14(a) and (b). The record discloses that the fourth day of hearing lasted only 1.5 hours meaning that five hours should be removed from the Respondent's total of 24 hours used to calculate item 14.
[4] The Appellants argued that there is no evidence of necessity or reasonableness of disbursements beyond the bald statement of counsel that they were reasonably incurred. The Appellants argued per Pratt v. Meredith [1999] F.C.J. No. 15 at para. 10 (A.O.); Ager v. International Brotherhood of Locomotive Engineers [1999] F.C.J. No. 909 at paras. 7-8 (A.O.); United Terminals Ltd. v. Canada (M.N.R.) [1991] F.C.J. No. 705 (T.O.); Carlile v. The Queen (1997), 97 D.T.C. 5284 (T.O.); Early Recovered Resources Inc., supra, Coppley Noyes & Randall Ltd. v. Canada [1993] F.C.J. No. 1378 at para. 15 (T.O.); Local 4004, Airline Division of Canadian Union of Public Employees v. Air Canada [1999] F.C.J. No. 464 at para. 7 (A.O.) and Inverhuron & District Ratepayers' Assn. v. Canada (Minister of the Environment) [2001] F.C.J. No. 666 at paras. 60-63 (A.O.) that, although the purpose of charges for examination transcript and court fees is evident on their face, the evidence of what was copied or sent, relative to charges of $7,504.25 (photocopies) and $942.00 (facsimiles) respectively, is not and therefore the threshold for proof of reasonable necessity has not been met. Given the environmental aspects of this litigation, much of the material provided for the Court originated with the Appellants or with the government Respondents.
[5] Relative to the bill of costs in the Federal Court of Appeal, the Appellants argued that the Respondent cannot claim anything under item 2 (records and materials) because it is compensated already under item 19 (memorandum of fact and law). As well, Rules 343 and 348 require the Appellants in judicial review matters to prepare appeal books and a joint book of authorities and therefore the Respondent cannot claim for something it did not do. The Appellants argued that the Respondent's motion for an expedited hearing of the appeal is not the equivalent of the Appellants' Requisition for Hearing and therefore it cannot claim anything under item 20. Further, the order granting the expedited hearing was silent as to costs thereby precluding entitlement to costs under item 21. The Appellants argued that the Respondents are not entitled to item 24 (travel by counsel) in the absence of an exercise of discretion by the Court so authorizing. Accordingly, the associated travel disbursements should be disallowed.
The Respondent's Position
[6] The Respondent argued generally per Rules 409 and 400(3) that the importance, complexity and amount of work associated with litigation supporting the addition of a $60 million meeting facility to ensure preservation of a world class heritage hotel warrants the maximum number of units. The Respondent noted that both Courts rejected the Appellants' proposition that costs should not be awarded against special interest groups purporting to represent the public interest. The Respondent agreed that special interest groups should be allowed access to courts as vehicles for sober second thought, but awards of costs against such groups relative to unsuccessful challenges to statutory schemes, such as here against an approved development, are warranted per Skidmore v. Blackmore (1995), 122 D.L.R. (4th) 330 (B.C.C.A.) so as to preclude unmeritorious and abusive litigation. The Respondent argued that a reduction at assessment of the number of units as a function of public interest would be inappropriate given that both Courts have already fully considered the public interest in exercising their discretion to award costs.
[7] The Respondent argued that this matter, being of significant financial importance and being the first litigation under the Canada Environmental Assessment Act arising from a construction project in a national park, generated several novel and complicated issues of administrative and environmental law requiring extensive analysis, legal research and written argument. This entailed work and length of documents far exceeding typical judicial review applications and appeals.
Assessment
[8] In Early Recovered Resources Inc., supra at para. 13, I commented that public interest "as a factor affecting costs is perhaps more difficult to apply than others because it could be considered to pervade the litigation as a whole whereas other factors, such as conduct tending to lengthen proceedings, can occur throughout, but could easily be attributed to portions only of litigation". I noted that the opposing litigants there agreed that public interest was a factor, but with opposite effect: one side urging generally reduced costs because of its initiative in challenging a statutory scheme and the other side urging generally increased costs because some individuals were satisfied with the statutory scheme.
[9] The Order in the Trial Division dated January 28, 2000, rejecting the Respondent's request for increased costs, reads in part:
[5] After reviewing the affidavit of Mr. Kissane and the material filed, I am not satisfied that I should exercise my discretion to direct that costs be assessed other than under column III of the Tariff. It is submitted that the application involved several novel and complicated issues of administrative and environment law, particularly regarding the proper interpretation of the Canadian Environmental Assessment Act which required extensive legal research and preparation given the conflicting jurisprudence in this area. While I accept that a substantial amount of work was required to research the issues, prepare affidavits and the motion record, review the applicants [sic] motion record, consult with counsel for the other respondents, the "amount of work" factor must be weighed against the public interest in having the proceedings litigated. While the affiant contends that the "public interest" factor weights in favour of CP as a public corporation whose shareholders will ultimately bear the cost of this litigation, in my view the public interest lies in having the issues raised in this application determined by this Court.
[6] In addition to the time and expense involved in the legal proceedings, Mr. Kissane states that the complexity and expense of the application increased significantly due to the fact that the respondents required legal advice in respect of media attention resulting from the proceedings, a public relations campaign launched by the applicants and the applicants purchased [sic] of shares in Canadian Pacific Limited, the respondent's parent company. In my view, costs associated with these activities cannot be considered costs of the litigation and, are therefore, not a basis on which to increase an award of costs.
[7] Having weighed the amount of work required by the respondents together with the importance of the issues raised in the application and the public interest in having these issues litigated, I am satisfied that the respondent's costs should be assessed under column III of the Tariff. Nevertheless, I am prepared to allow that the fee for second counsel be assessed on the same basis as first counsel. Further, all incidental expenses incurred for travel to Vancouver are wholly allowed.
This passage would be consistent with an observation that Rule 400(3) factors do not necessarily have to weigh in favour of the successful litigant receiving the award of costs, ie. conduct impeding progress of litigation might result in reduced allowances. However, the Federal Court of Appeal's comments at para. [79] of its Reasons provide valuable perspective on such exercises of discretion: "While the fact that litigants purport to act in the public interest is a factor to be considered in exercising our discretion as to costs, it is only one factor... appellants' case was largely based on arguments with no factual foundation and this factor weighs against granting the appellants relief from costs."
[10] I think that the application of Rule 400(3) factors against the interest of successful litigants would require carefully considered discretion. Rule 409, being permissive, does not bind an assessment officer to exercise discretion exactly as the Court has done and does not automatically require that a public interest factor override all other factors so as to achieve minimum or maximum allowances. In Early Recovered Resources Inc., supra, I tempered the weight given to public interest because it was regional in nature. I doubt that, in these circumstances, I can ignore the Appellants' role in creating scrutiny of the process, but it is also uncontroverted that the Respondent had important responsibilities, including respect for the Appellants' right to proceed. The Respondent, having received the ordinary scale of party and party costs, is not bound by a public interest factor to permit the Appellants to escape completely the consequences of that costs award, ie. by minimum allowances when higher allowances might otherwise be warranted. I concluded at paragraph [7] in Starlight et al. v. Her Majesty the Queen, supra, 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 are required between an upper versus lower allowance from available ranges. My allowances below tend to weigh in favour of the Respondent's position relative to Rule 400(3) factors, including public interest, but in a modest way to account for the national public interest asserted by the Appellants.
[11] Relative to the Respondent's bill of costs in the Trial Division, I allow item 2 (materials and records) at 6 units (available range 4 - 7 units). The definition of assessment officer in Rule 2 and the constitution of the Court outlined in section 5 of the Federal Court Act preclude me from exercising jurisdiction under Rule 400(1). Rule 400(1) requires that the Court visibly exercise its discretion for costs. Here, the Court did not do so for the interlocutory motions and I have no jurisdiction to interfere with these dispositions by allowing associated costs. Therefore, I disallow the claims under items 4 and 5. Items 8 (preparation) and 9 (attendance at cross-examination of affiant) are allowed at 4 units and 1 unit respectively (available ranges 2 - 5 and 0 - 3 units respectively) as it was prudent for the Respondent's counsel to participate. Items 13(a) and (b) for preparation are allowed at 4 and 3 units respectively (available ranges 2 - 5 and 2 - 3 respectively). Item 14(a) for attendance at the judicial review is allowed at 3 units (available range 2 - 3 units), but for a reduced total of 20 hours. The submissions from both sides recognized, correctly in my opinion, that this phrase in the Court's directions, "that...second counsel be assessed on the same basis as first counsel", removed the 50% restriction in item 14(b). This does not preclude me from allowing something different from the result for first counsel and simply means that second counsel should be assessed within the available range for first counsel under item 14(a), but not as if both counsel had performed identical functions. Further, I find no requirement that the allowances for each counsel be adjusted relative to one another. Each performed a distinct, but not interchangeable, service. I allow 20 hours at 2 units per hour. Items 15 (written argument), 24 (travel by counsel) and 26 (assessment) are allowed at 5, 2 and 6 units respectively (available ranges of 3 - 7, 1 - 5 and 2 - 6 units respectively). The proof for photocopies, as usually happens, is less than absolute. This litigation was not straightforward. I note with approval the pragmatic approach in Inverhuron, supra, rejecting indemnification for photocopies calculated on a per page rate not readily provable, but allowing a lump sum to account for the real costs incurred in litigation. Per Carlile supra and Local 4004 supra, I allow a reduced amount of $6,250.00 inclusive of any service taxes. To account for disbursement costs relative to motions not resulting in awards of costs, I allow the balance of disbursements at a reduced amount of $4,900.00 inclusive of any services taxes.
[12] Relative to the Respondent's bill of costs in the Federal Court of Appeal, the wording of item 2 does not specifically preclude, as does item 1, appeal materials. However, the Tariff is designed for indemnification of discrete services, ie. item 17 addresses the exception in item 1. In the circumstances of the litigation, I remove item 2. I allow item 19 (memorandum of fact and law) at 7 units (available range of 4 - 7 units). The wording of item 20 does not restrict its recovery to the party filing the requisition for hearing. An adverse party must react somehow for or against: the record discloses involvement by the Respondent at that stage of the litigation. I allow the 1 unit permitted by the Tariff. For the reasons above for items 4 and 5, I disallow item 21. I allow item 22 (attendance at the appeal) at 3 units (available range 2 - 3 units). For the reasons above denying allowances for orders silent as to costs, I do not exercise the discretion of the Court specified in item 24. The Trial Division's order for item 24 does not extend to the appeal proceeding. Therefore, I disallow the claim under item 24. For the reasons above concerning orders silent as to costs, the disbursements presented at $908.50 inclusive of GST, are allowed at $800.00 inclusive of GST. That does not include reduction of the travel expenses for counsel as I have concluded several times in the past that fee item 24 addresses only the time of counsel in transit and does not limit my jurisdiction for associated disbursements.
[13] The Appellants have benefited minimally by the Respondent's claim of only $100.00 per unit. The Respondent's bill of costs in the Trial Division, presented at $34,211.44, is assessed and allowed at $24,850.00. The Respondent's bill of costs in the Federal Court of Appeal, presented at $5,308.50, is assessed and allowed at $3,700.00.
(Sgd.) "Charles E. Stinson"
Assessment Officer
DATED at Vancouver, British Columbia, this 19th day of December, 2002.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-642-99
STYLE OF CAUSE: Bow Valley Naturalists Society et al. v. Minister of Canadian Heritage et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS BY: CHARLES E. STINSON
DATED: December 19, 2002
SOLICITORS OF RECORD:
Sierra Legal Defence Fund for Appellants
Vancouver, BC
Morris Rosenberg for Respondents Minister of
Deputy Attorney General of Canada Heritage, John Allard Acting
Ottawa, ON Superintendent for Kootenay,
Yoho and Lake Louise Field
Unit of Parks Canada
MacLeod Dixon for Respondent Canadian Pacific
Calgary, AB Hotels Corporation