Date: 20021007
Docket: A-386-00
Neutral citation: 2002 FCA 366
BETWEEN:
BERTHA L'HIRONDELLE, suing on her own behalf and on behalf
of all other members of the Sawridge Band
Plaintiff / Appellant
- and -
HER MAJESTY THE QUEEN
Defendant / Respondent
- and -
NATIVE COUNCIL OF CANADA, NATIVE COUNCIL OF CANADA
(ALBERTA), NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMENS' ASSOCIATION OF CANADA
Interveners / Respondents
Docket: A-387-00
BETWEEN:
BRUCE STARLIGHT, suing on his own behalf and on behalf
of all other members of the Tsuu T'ina First Nation
(formerly the Sarcee Indian Band)
Plaintiff / Appellant
- and -
HER MAJESTY THE QUEEN
Defendant / Respondent
- and -
NATIVE COUNCIL OF CANADA, NATIVE COUNCIL OF CANADA
(ALBERTA), NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMENS' ASSOCIATION OF CANADA
Interveners / Respondents
Assessment Officer
[1] The Court dismissed the appeal in each Court file, but with one set of costs payable to each respondent and intervener. Upon subsequent application, the Court ordered that costs be assessed at the maximum value under column IV of Tariff B including counsel fees under item 24 for travel, and associated disbursements. I issued a timetable for written disposition of the bill of costs filed on behalf of the Intervener, the Non-Status Indian Association of Alberta. There were no reply submissions filed.
Assessment
[2] The Federal Court Rules, 1998, do not contemplate a litigant, having notice of an assessment of costs and failing to participate, benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of a judgment and the tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. There were items which might have attracted disagreement, but the amount claimed in total in the bill of costs may be arguable within the limits of the tariff, i.e. to include settlement discussions.
[3] It is well settled that the events of interlocutory motions are distinct from the events of the substantive issues of the litigation in which they occur. Costs for such interlocutory events can be assessed only as a function of their visible award in interlocutory Orders distinct from final judgments. That did not occur here relative to two of the three claims under item 21(a) for preparation for interlocutory motions. 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 assuming jurisdiction under Rule 400(1) to allow item 21(a) in those circumstances. This applies as well to the associated disbursements. The Court, in disposing of the third motion by increasing costs to the maximum value under column IV, expressed its concern with certain aspects of these proceedings and framed the order for costs in language arguably including those for the motion. I have taken that possibility into consideration.
[4] In the circumstances of this litigation, and without attempting a calculation isolating the exact dollars associated with the first two motions, I conclude that a fair result at assessment of the bill of costs of the Non-Status Indian Association of Alberta, presented at $10,727.32, is $9,400.00.
(Sgd.) "Charles E. Stinson"
Assessment Officer
DATED at Vancouver, British Columbia, this 7th day of October, 2002
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-386-00
STYLE OF CAUSE: BERTHA L'HIRONDELLE et al.
- and -
HER MAJESTY THE QUEEN et al.
DOCKET: A-387-00
STYLE OF CAUSE: BRUCE STARLIGHT et al.
- and -
HER MAJESTY THE QUEEN et al.
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS - REASONS: CHARLES E. STINSON
DATED: October 7, 2002
SOLICITORS OF RECORD:
Aird & Berlis for Appellants Bruce Starlight et al.
Toronto, ON
Catherine Twinn for Appellants Bertha L'Hirondelle et al.
Slave Lake, AB
Morris Rosenberg for Defendant Crown
Deputy A/G of Canada
Lang Michener for Intervener Native Council of Canada
Ottawa, ON
Burnett Duckworth & Palmer for Intervener Non-Status Indian Association of Alberta
Calgary, AB
Field Atkinson Perraton for Intervener Native Council of Canada (Alberta)
Edmonton, AB
Eberts Symes Street & Corbett for Intervener Native Women's Association of Canada
Toronto, ON