Date: 20040324
Docket: A-521-02
Citation: 2004 FCA 123
BETWEEN:
TERRY BALISKY, MARCIA BALISKY, BEV COLLIN HOLDINGS LTD.,
BYRON BUE, RAYMOND BUE, PETER EGGERS, LEVKE EGGERS,
BRYAN ELLINGSON, CHARLES EVASKEVICH, NORA EVASKEVICH,
BRIAN FAST, TERESA FAST, DOUG GABERT, RAYMOND GILKYSON,
VICKI GILKYSON, JAMES GLASMAN, ELAINE GLASMAN, STIRLING HANSON,
LAURA HANSON, ROGER JONES, FERN JONES, DON LILAND, LINDA LILAND,
MARIO MAROUELLI, JAMIE MAROUELLI, DONALD MEADOR,
MONA MIDDLETON, GLENDA HAUGHIAN, BRIAN MOE, JANICE MOE,
RANDY MOE, KRIS MOE, FRANKLIN MOLLER, LLOYD OLLEY,
KATHERINE OLLEY, DON PEDERSEN, KANE PIPER, ROBERT RICHARDS,
ADA RICHARDS, CORNIE SCHMIDT, PRISCILLA SCHMIDT,
ALBERT SLATER, KEN SLATER, DALE SMITH, GWEN SMITH,
GORDON STRATE, FRANK THEDERAHN, IRMA THEDERAHN and
ED WELSH
Appellants
- and -
THE HONOURABLE RALPH GOODALE, MINISTER OF
NATURAL RESOURCES AND ALLIANCE PIPELINE LTD.
Respondents
Assessment Officer
[1] A copy of these reasons is filed in court file T-54-01 and applies there accordingly. The Respondent, Alliance Pipeline Ltd. (hereafter "Alliance") obtained approval from the National Energy Board to construct and operate the Canadian portion of a natural gas pipeline extending from British Columbia to Illinois. The Respondent, Minister of Natural Resources (hereafter the "Minister"), refused the Appellants' request to direct arbitration committees appointed under the National Energy Board Act to address compensation for alleged damages involving what is termed the "controlled area" adjacent to the pipeline's right of way. The Federal Court dismissed the Appellants' application for judicial review of said refusal. This Court allowed their appeal of the Federal Court's decision with costs here and in the Federal Court, quashed the Minister's decision and directed that arbitration committees be convened to address compensation relating to the controlled area. The Appellants filed two bills of costs (each for $7,823.57) which were identical in every way, except that one was directed to Alliance and the other was directed to the Minister. Each incorporated costs of the respective courts in a single bill of costs, a practice which should not be encouraged as these are distinct courts, but the Respondents did not object. I issued a timetable for written disposition of the assessments of costs.
The Respondents' Positions
[2] The Minister did not file reply materials. Alliance objected generally to claims for counsel fee items at the maximum values in available ranges as inconsistent with the complexity of the issues and degree of preparation required. Alliance noted the absence in the Appellants' Memorandum of Fact and Law filed in each court of any reference to case law and argued further to Rule 400(3)(c) (importance and complexity) and (g) (amount of work) that items 1 (preparation of originating document in the Federal Court), 13(a) (preparation for the judicial review hearing), 14(a) (appearance at hearing of the judicial review), 19 (Memorandum of Fact and Law in the Federal Court of Appeal) and 22(a) (appearance at hearing of the appeal) should be reduced to mid-range values.
[3] Alliance argued that the Appellants improperly claim fees and disbursements associated with three interlocutory applications in the Federal Court resulting in orders dismissing, without costs to any party, the Appellants' motion for immediate hearing of the judicial review and allowing each motion of the Respondents to strike the notice of application for judicial review, without costs, but with leave to the Appellants to amend on prescribed terms. Further, these interlocutory events were a function of the Appellants' intransigence concerning irregularities in the commencement of proceedings drawn to their attention and therefore they should not be rewarded with costs.
[4] Alliance argued that, by presenting an individual bill of costs as against each Respondent, the Appellants effectively seek double recovery of costs, ie. by full recovery of a set of counsel fees relative to each Respondent plus one-half of disbursements unsupported by affidavit and assigned to each Respondent respectively. Alliance argued that, to the extent that costs were awarded to the Appellants, those costs should be allocated in equal parts as against each Respondent. Alliance argued that the Appellants' conduct was singularly responsible for costs having to be assessed and therefore Alliance should receive costs further to Rule 408(3).
The Appellants' Position
[5] The Appellants asserted that a separate bill of costs relative to each Respondent does not represent recovery of double costs because each Respondent actively opposed the Appellants at all stages, in turn requiring a response to the case made by each Respondent. The disbursements were divided equally between the Respondents. The Appellants argued that the irregularities raised at the interlocutory stage in the Federal Court were merely technical. The provision by the Federal Court of Appeal for costs in the Federal Court applies to these interlocutory motions. The Appellants argued that the position of Alliance concerning complexity and amount of work is undercut by the latter's assertion, in its application for leave to appeal to the Supreme Court of Canada, that this matter involved national importance across all jurisdictions, that the Federal Court of Appeal's decision represented a fundamental change in the manner in which the National Energy Board Act has been applied to date, and that the matter has not previously been considered in any Canadian superior court.
Assessment
[6] I have not summarized or commented on the details in the parties' submissions concerning the interlocutory events in issue. It is sufficient to note only that Alliance has correctly objected to claims for costs as a function of orders in question. 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. 3 and 5(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". This means that I must reject the Appellants' position that the judgment of the Federal Court of Appeal perfected their entitlement to costs for interlocutory events in the Federal Court for which the relevant orders specifically denied costs. Accordingly, I disallow items 5 (preparation of a response to the motion), 13 (preparation for the hearing of the motion), 14 (appearance on the motion) and 24 (travel to the motion's venue). The absence of evidence supporting the bills of costs makes it difficult, if not impossible, to confirm whether the $364.00 + GST claimed (50% apportioned to each Respondent) for travel by the Appellants' counsel from Grande Prairie to Edmonton addresses only one hearing or is a total for all Edmonton hearings, which would include the Federal Court interlocutory hearing referred to above for which no entitlement to costs exists, the hearing of the judicial review by the Federal Court for which an entitlement to costs does exist, and the hearing of the appeal by this Court for which an entitlement to costs also does exist. My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608, that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", is that discretion may be applied to sort out a reasonable result for costs equitable for both sides. I allow $240.00 + GST for travel (50% apportioned to each Respondent). The $100.00 specific to accommodation for the interlocutory hearing in T-54-01 is disallowed. As well, I remove a further $60.00 + GST (50% apportioned to each Respondent) to account for other miscellaneous disbursements associated with this interlocutory hearing.
[7] The Appellants claimed for item 3 (the amendment to their notice of application for judicial review flowing from the interlocutory events noted above in the Federal Court). My rationale above for disallowing costs associated with the interlocutory events in the Federal Court is not applicable here, but I will disallow item 3 in these circumstances because it is intended to address amendment of documents necessitated by an amended document "of another party" [my emphasis]. In the Federal Court, the genesis of the Appellants' amendment was not an amended document from any of the Respondents, but rather resulted from a series of motions. I disallow the item 24 claim in each bill of costs for travel by counsel to the venue for the hearing of the appeal and for the hearing of the judicial review. Consistent with my conclusions above concerning my jurisdiction, I have consistently held that I do not have jurisdiction to address item 24 in the absence, as here, of an exercise of prior discretion by the Court authorizing me to do so. That restriction does not apply to associated travel disbursements, for which I retain jurisdiction further to Rule 405: the allowance of $240.00 above reflects that conclusion.
[8] The discussion in Mark M. Orkin, The Law of Costs, 2nd ed., (Aurora, Ont.: Canada Law Book, 2003) at paras. 209.1 to 209.5 inclusive, pages 2-77 to 2-82.6, addresses several issues concerning distribution of costs relative to multiple parties and suggests that apportionment by assessment officers is to be avoided, although the Court is free to do so. With respect, I think that assessment officers may rightly consider certain apportionment issues as a function of varied circumstances in litigation, ie. such as between causes of action: see Milliken & Co. v. Interface Flooring Systems (Canada) Inc., [2003] F.C.J. No. 1586 (A.O.) and Lac La Ronge Indian Band v. Redsky, [2004] F.C.J. No. 297 (A.O.). As the Appellants have chosen to present the disbursements split equally between the two Respondents, relevance and sufficiency of proof are the only issues for the disbursements. The additional issue for counsel fee items is that each bill of costs claims the maximum 7 units for item 1 and so on in each bill for the respective Respondents through item 25 (services after judgment). The Court's judgment did not expressly authorize this approach. Rule 409 permits me to consider Rule 400(3) factors. Although a tenuous argument might be made that Rule 400(3)(d) (apportionment of liability) applies, there is not really any factor listed in Rule 400(3) that fits these circumstances, other than perhaps Rule 400(3)(o) (any other matter considered relevant). Rule 405 assigning my jurisdiction is not restrictive. I conclude that I have the jurisdiction to allow or deny the multiple sets of costs proposed by the Appellants against Alliance and the Minister respectively. In so concluding, I had regard to Rule 3 and to my sentiment in Feherguard Products Ltd. v. Rocky's of B.C. Leisure Ltd., [1994] F.C.J. No. 2012 (A.O.) at para. [10] that the "best way to administer the scheme of costs in litigation is to choose positive applications of its provisions as opposed to narrower and negative ones". The application of discretion should be part of a reasoned process to achieve a result on assessment which is equitable for both sides.
[9] Rule 303(1)(a) requires an applicant for judicial review to name as respondent every person directly affected by the order sought. This became an issue specifically raised by Alliance resulting in an order in the Federal Court adding it as a named Respondent. The interests of the participants in this litigation were fundamentally different: the Appellants to gain access to a vehicle for possible damages or other compensation flowing from construction of a pipeline in the vicinity of their property, Alliance as builder and operator of the pipeline to minimize its exposure to responsibility for damages or other compensation, and the Minister to maintain the existing application of the statutory scheme in the National Energy Board Act for control and resolution, in the public interest, of issues arising out of the construction and operation of the pipeline. Any number of documents in the record confirm this, ie. paragraphs 7 and 8 in Alliance's Memorandum of Fact and Law (filed October 15, 2001 in the Federal Court) referring to the authority of the Minister under the National Energy Board Act, s. 91(2), to require written submissions from the Appellants and from Alliance on issues of compensation and arbitration relative to the controlled area and referring to the resultant correspondence from the Appellants and Alliance respectively which took sharply contrasting positions in urging the Minister to make a decision in their respective best interest.
[10] This litigation was not an action to assign liability and crystallize damages. In the Federal Court, the Minister and Alliance each filed a Memorandum of Fact and Law in which each asserted a single and identical point in issue, ie. whether the Minister erred in directing that the appointed arbitration committees not consider compensation for the controlled area. Their statements of facts were consistent. The Minister adopted and relied upon the submissions of Alliance and added brief submissions on the construction of ss. 84, 88 and 90 of the National Energy Board Act. The Appellants' Memorandum of Fact and Law in the Federal Court did not expressly define a point in issue, but it effectively suggested that the issue for judicial review was whether the Minister's decision constituted an error. In the Federal Court of Appeal, the Memorandum of Fact and Law filed by each of the Appellants, the Minister and Alliance asserted that the single point in issue was whether the Minister erred in directing that the appointed arbitration committees not consider compensation for the controlled area. The Minister adopted the statement of facts of Alliance. Although the submissions of Alliance were somewhat more detailed than those of the Minister, their thrust was comparable to those of the Minister, ie. to assert that the Minister had correctly exercised his discretion in these circumstances.
[11] In my view, and notwithstanding the fundamental differences of interest between the Minister and Alliance respectively, the circumstances here of the participation by Alliance in this litigation were that its argument advanced and result sought coalesced with the interest of the Minister effectively meaning that, apart from the interlocutory events in the Federal Court for which issues of entitlement to costs must be considered separately as noted above, the Appellants were addressing a single legal issue, regardless of the number of Respondents.
[12] In the ordinary course, I would conclude in these circumstances that the Appellants have not made out a case for separate bills of costs as against the Minister and Alliance. However, for the following reasons, I understand their motivation for having presented separate bills of costs. The Federal Courts Act, s. 18.1(3), defines the jurisdiction for judicial review of decisions of federal boards, commissions or other tribunals. Alliance is not caught up in the definition of federal boards etc. set out in the Federal Courts Act, s. 2(1) and it was not any decision of Alliance that was to be the subject of the judicial review. The Law of Costs supra, at paragraph 209.4 discusses the practice of discouraging, by precluding multiple sets of costs, the use of different solicitors to represent the same interest. At page 2-82.4 of paragraph 209.4, it refers to Rogers v. Davis, [1932] S.C.R. 546 and states that a "contrary view has, however, been expressed, deriving in part from a dictum in the Supreme Court of Canada: 'I know of no law or rule... which compels persons... to appear by the same solicitor because their interest, as regards their opposition to the claim of the plaintiff, may be identical'". It then suggests that, although a defendant is not obliged to engage some other party's solicitor instead of his or her own, a defendant will not be entitled to a separate bill of costs if its interest is identical to that of a co-defendant. The Department of Justice Act, s. 5(d) provides that the Attorney General of Canada "shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada". That statutory authority could not extend, in these circumstances, to permit representation of the interest of Alliance. I think that the Minister and Alliance should bear the burden of costs equally in these circumstances, but on the basis of a single set of costs to be apportioned equally between these two Respondents. Therefore, as in Milliken supra, I will arrive at a decision for, as an example, the appropriate allowance for item 1 and apportion one-half of that allowance as against each of the Minister and Alliance respectively.
[13] 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 that some generalization is required between the available values in ranges. I agree with the Appellants that this litigation had broader implications, ie. for all property owners and not just these Appellants, but I also think the issues raised were not particularly complex. In the Federal Court, I allow items 1, 13(a) and 14(a) presented at the maximum 7, 5 and 3 units respectively, at 5, 4 and 3 units respectively, all subject to the apportionment noted above. In the Federal Court of Appeal, I allow items 17 (preparation of the notice of appeal), 18 (preparation of the appeal book), 19, 20 (requisition for hearing), 22(a) and 25, presented at the maximum 1, 1, 7, 1, 3 and 1 units respectively, at 1, 1, 5, 1, 3 and 1 units respectively, all subject to the apportionment noted above. Notwithstanding the lack of proof, I will address the disbursements consistent with Carlile and Re Eastwood (deceased) and allow them as presented, except for photocopies which I reduce to $370.00 from $431.40 (50% apportioned to each Respondent) and except for the adjustments noted above.
[14] Although the Appellants' approach did complicate somewhat the assessment of costs, it was a function, I believe, of a conviction for entitlements to costs not intended to frustrate Alliance. I deny Alliance any Rule 408(3) costs. The bill of costs of the Appellants, presented at $7,823.57 respectively against each of the Minister and Alliance, is assessed and allowed at
$1,812.28 respectively against each of the Minister and Alliance.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
March 24, 2004
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-521-02
STYLE OF CAUSE: TERRY BALISKY et al.
Appellants
- and -
THE HONOURABLE RALPH GOODALE,
MINISTER OF NATURAL RESOURCES
and ALLIANCE PIPELINE LTD.
Respondents
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: March 24, 2004
SOLICITORS OF RECORD:
Carter, Lock & Horrigan
Grande Prairie, AB for Appellants
Morris Rosenberg for Respondent
Deputy Attorney General of Canada Minister of Natural Resources
Fraser Milner Casgrain LLP for Respondent
Calgary, AB Alliance Pipeline Ltd.