Date: 20040716
Docket: A-656-01
Citation: 2004 FCA 262
BETWEEN:
CHIEF LARRY COMMODORE, CHIEF OF THE
SOOWAHLIE INDIAN BAND, ON BEHALF OF HIMSELF AND
ALL OTHER MEMBERS OF THE SOOWAHLIE INDIAN BAND,
AND ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS
OF THE STO:LO ABORIGINAL NATION
CHIEF DAVID SEPASS, CHIEF OF THE SKOWKALE INDIAN BAND,
ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE
SKOWKALE INDIAN BAND, AND ON BEHALF OF HIMSELF AND
ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF JOE HALL, CHIEF OF THE TZEACHTEN INDIAN BAND,
ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE
TZEACHTEN INDIAN BAND, AND ON BEHALF OF HIMSELF AND
ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
CHIEF FRANK MALLOWAY, CHIEF OF THE
YAKWEAKWIOOSE INDIAN BAND, AND CHIEF DALTON SILVER,
ACTING CHIEF OF THE YAKWEAKWIOOSE INDIAN BAND, ON
BEHALF OF THEMSELVES AND ALL OTHER MEMBERS OF THE YAKWEAKWIOOSE INDIAN BAND, AND ON BEHALF OF THEMSELVES
AND ALL OTHER MEMBERS OF THE STO:LO ABORIGINAL NATION
Appellants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
- and -
CITY OF CHILLIWACK
Intervener
Assessment Officer
[1] The Appellants' appeal from a decision of the Federal Court dismissing their motion for an interlocutory injunction to prevent the transfer of title of certain lands, pending determination of their judicial review application challenging the validity of an Order in Council authorizing the Minister of Defence to transfer said title, was dismissed with costs to the Respondent and to the Intervener. The Respondent covered the filing of a bill of costs with a letter indicating that the Appellants' solicitor of record no longer represented them and providing current addresses for service (one for each Chief and associated Band). I issued a timetable for disposition in writing of the Respondent's bill of costs. It was directed to each Chief in turn, but with an information copy to the Appellants' solicitor of record. The Appellant Chief Joe Hall, Chief of the Tzeachten Indian Band (hereafter the "Tzeachten Band"), was the only Appellant to file reply materials.
Item 19: 5 units claimed for Memorandum of Fact and Law (available range 4-7 units: hereafter, the numbers in brackets represent the available range)
Item 21(a): 2 units claimed for preparation of written representations for a motion to expedite the appeal (2-3)
Item 22(a): 3 units claimed per hour (5 hours) for appearance at the appeal hearing (2-3)
Item 26: 4 units claimed for assessment of costs (2-6)
Item 28: 2 units claimed for articled student to prepare legal memorandum related to the appeal (50% of the amount that would be calculated for a solicitor)
$3,236.23 claimed for disbursements: postage ($3.90); local messenger ($32.50); in-house photocopies at $0.25 per page ($1,965.75); binding ($78.30); online computer research ($911.07); agent fees ($33.00) and GST ($211.71)
The Tzeachten Band's Position
[2] The Tzeachten Band argued further to Rules 409 and 400(3)(h) and (o) for reduction of costs in the public interest. That is, the positions advanced by the Appellants concerning the substantive issues of judicial review of the transfer of title parallel those accepted in two recent decisions of the British Columbia Court of Appeal addressing the fiduciary obligations of the Crown regarding aboriginal title: appeals from both decisions are pending determination by the Supreme Court of Canada. The Tzeachten Band argued that the decisions in Singh v. Canada, [1999] 4 F.C. 583 (F.C.T.D.) affirmed at [2000] F.C. 185 (F.C.A.) and Shepherd v. Canada (Solicitor-General) (1990), 36 F.T.R. 222 (F.C.T.D.), confirm that costs decisions sometimes favour unsuccessful litigants pursuing public interest issues and therefore the counsel fees here should be reduced to minimum values. The case law, ie. McCain Foods Ltd. v. C.M. McLean Ltd., [1980] F.C.J. No. 1010 (F.C.T.D.) and Pharmacia Inc. v. Canada (Minister of National Health and Welfare), [1999] F.C.J. No. 1770 (A.O.), generally precludes costs for articled students. In the particular circumstances here of public interest, the 2 units claimed under item 28 should be disallowed.
[3] The Tzeachten Band argued that the Respondent has not produced evidence of the reasonableness or necessity of the photocopy charges of $1,965.75. As well, the Respondent's decision to use an agent as counsel, in place of the Department of Justice, contributed to excess photocopy charges. Therefore, the $1.965.75 should be reduced by one-half. The Tzeachten Band argued that the Respondent has not produced evidence of the reasonableness of online computer research charges of $911.07 and that case law such as Pharmacia, supra, and All Canada Vac Ltd. v. Lindsay Manufacturing Inc., [1992] F.C.J. No. 354 (F.C.T.D.), restrict recovery accordingly.
The Respondent's Position
[4] The Respondent argued that the assertion in the judicial review proceeding of the existence of a reserved interest in, or aboriginal title to, the subject land was irrelevant to the circumstances of the appeal here, being an injunction enjoining transfer of title to lands pending the judicial review. The Respondent's bill of costs accordingly confines itself to said appeal and not any issues associated with the now discontinued judicial review. Paragraph [12] of this Court's decision specifically addresses public interest factors affecting the status of the subject land. Its assertion that they "are all balance of convenience considerations that weigh in favour of the respondent" should be taken as conclusive. The decision in Sharp v. Canadian Transportation Agency, [2000] F.C.J. No. 1051 (A.O.) at paragraphs [2] to [4], reinforces the principle that if a judgment holds that public interest factors are not in favour of a party, that party cannot subsequently argue that public interest considerations should minimize assessed costs against it. The Respondent noted that the Appellants did not advance public interest at the appeal hearing as a factor in costs and did not move the Court for directions further to Rule 400(3)(h) to reduce the Respondent's costs, as would have been more proper. Essentially, the judgment here held that the Appellants' position would have frustrated, not vindicated, the public interest.
[5] The Respondent argued that this appeal was decided on well-settled principles of injunction law not advancing the public interest in any novel way, thereby not warranting any public interest reduction of costs: see the reasons of the Court dated December 11, 2001, and Carpenter Fishing Corp. v. Canada, [1999] F.C.J. No. 393 (A.O.) at paragraph [10]. The public interest factor advanced here by the Tzeachten Band as a function of the two British Columbia Court of Appeal cases appears to revisit or reargue aspects of the judicial review, which are irrelevant in the circumstances of the independent appeal proceeding and associated bill of costs here.
[6] The Respondent argued that public interest factors warrant the 2 units claimed under item 28: see Apotex Inc. v. Syntex Pharmaceuticals International Ltd., [1999] F.C.J. No. 1465 (F.C.T.D.) at paragraph [22], varied (but not on this point) at [2001] F.C.J. No. 727 (F.C.A.). The Respondent argued that the decision to use outside counsel did not result in additional photocopy charges as a function of the current approved practice of $0.25 per page. The Respondent argued that cases such as Sharp, supra, and Pharmacia, supra, have acknowledged online computer research as an efficient tool of litigation.
Assessment
[7] Generally, I accept the Respondent's position on public interest. An interlocutory appeal should be considered on its own circumstances distinct from the substantive issues in the proceeding from which it originated. I concluded, at paragraph [7] in Bruce Starlight et al. v. Her Majesty the Queen, [2001] F.C.J. No. 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.
[8] Except for item 22(a), the Respondent claims mid-range or minimum values for counsel fees, which I allow as presented. I think that the circumstances warrant 3 units, as opposed to 2 units, per hour under item 22(a). In Air Canada v. Canada (Minister of Transport), [2000] F.C.J. No. 101 (A.O.), I considered the conditions for allowances under item 28, albeit as a function of the regulations governing professional conduct for a jurisdiction different than those governing the Respondent's counsel here. The structure of the Tariff embodies discrete services of counsel. I do not think that the circumstances here warrant an allowance under item 28, particularly given that the subject service has likely already been addressed under item 19 and cannot be indemnified twice.
[9] I will apply discretion to disbursements consistent with my approach in Grace M. Carlile v. Her Majesty the Queen (1997), D.T.C. 5284 at 5287 (T.O.) and with 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", in sorting out a reasonable result for costs. The proof here is vague in some respects. The less that evidence is available, the more that the assessing party is bound up in the assessment officer's discretion, the exercise of which should be conservative with a view to a sense of austerity to preclude prejudice relative to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd. I would think that the Respondent's statutory counsel, the Department of Justice, chooses outside counsel in certain situations based on factors such as expertise or the need for different perspective. That does not necessarily mean that reporting activity, if any, would result in extra costs. In any event, with particular regard to my approach in Canadian Union of Public Employees, Local 404 v. Air Canada, [1997] F.C.J. No. 464 (A.O.), I allow a reduced amount of $1,350.00 for photocopies. I allow a reduced amount of $60.00 for binding.
[10] The decisions on assessments of costs in Pharmacia, supra, and others have followed my reasoning for online computer research. My decision in Englander v. Telus Communications Inc., [2004] F.C.J. No. 440 (A.O.), confirms that I routinely continue to allow such costs, with consideration to preclude costs associated with irrelevant research, keeping in mind the professional obligation of counsel both to the client for diligent representation and to assist the Court as much as reasonably possible on all aspects of the law potentially affecting final adjudication on the substantive issues of the litigation. I allow a reduced amount of $650.00. In all other respects, I allow the disbursements as presented (GST however being adjusted as appropriate).
[11] The Respondent's bill of costs, presented at $6,762.83, is assessed and allowed at $5,553.16.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, BC
July 16, 2004
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-656-01
STYLE OF CAUSE: CHIEF LARRY COMMODORE et al.
- and -
ATTORNEY GENERAL OF CANADA et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE
OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: July 16, 2004
SOLICITORS OF RECORD:
Mandell Pinder FOR APPELLANTS
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
agent: Hunter Voith
Vancouver, BC
Lidstone Young Anderson FOR INTERVENER
Vancouver, BC