Federal Court of Appeal Decisions

Date: 20060802

Docket: A-528-02

A-549-02

Citation: 2006 FCA 274

BETWEEN:

ATOMIC ENERGY CONTROL BOARD and COGEMA RESOURCES INC.

Appellants

(Respondents)

and

INTER-CHURCH URANIUM COMMITTEE EDUCATIONAL CO-OPERATIVE

of the City of Saskatoon, the Province of Saskatchewan

Respondent

(Applicant)

and

ATTORNEY GENERAL OF SASKATCHEWAN

LAC LA RONGE INDIAN BAND

KITSAKI DEVELOPMENT LIMITED PARTNERSHIP and

NORTHERN RESOURCE TRUCKING LIMITED PARTNERSHIP

Interveners

ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]   A copy of these Reasons is filed today in Federal Court file T-1313-99 (Inter-Church Uranium Committee Educational Co-Operative v. Atomic Energy Control Board and Cogema Resources Inc.) and in Federal Court of Appeal file A-549-02 (the order dated November 15, 2002 providing for consolidation of the appeal matters made A-528-02 the lead appeal, but required the use of the style of cause in A-549-02) and applies there accordingly. The Applicant in T-1313-99, Inter-Church Uranium Committee Educational Co-operative (Inter-Church) sought judicial review by the Federal Court of a decision of the Atomic Energy Control Board (the Board) to issue a licence to Cogema Resources Inc. (Cogema) for tailings management associated with a uranium mining project in northern Saskatchewan. Paragraph [1] of the Federal Court’s decision dated September 23, 2002, which quashed the licence and awarded costs to Inter-Church, noted that said project has “generated community and expert opposition on ethical as well as scientific grounds.” Both respondents appealed said decision. Paragraph [37] of the decision of the Federal Court of Appeal dated June 4, 2004 noted that the basis for the challenge to the licence was that there had not been an environmental screening report or an environmental assessment under the relevant statute. In paragraph [50], the Court acknowledged that Inter-Church’s “position is driven by the honestly held opinions of its members regarding the harmful effects of uranium mining,” but concluded that the statutory scheme did not require the environmental assessment sought by Inter-Church. The Court allowed the appeals, set aside the decision of the Federal Court, dismissed the application for judicial review and awarded Cogema its costs in this Court and below. I issued a timetable for written disposition of the assessment of Cogema’s bill of costs filed in each court.

I.   Cogema’s Position

[2]   Cogema argued that the Federal Court recognized the relevance of its legal and economic interests in adding it as a respondent. Per Chaperon v. Canada, [1992] 3 F.C. D-9 (T.O.), Inter-Church’s non-profit status cannot shield it from the obligation for costs imposed by the judgment. Inter-Church’s position, i.e. that it achieved divided success, is incorrect. That is, a successful lower court decision later overturned on appeal does not equate to divided success because an instance of divided success requires success in at least one part of the litigation. Here, the application for judicial review was ultimately dismissed without any restriction on Cogema’s recoverable costs under the tariff.

[3]   Cogema argued that the record confirms the complexity of this litigation, i.e. the standard of review and the interpretation of the statutory and regulatory framework applicable to uranium projects. The tariff limits for recoverable costs are but a fraction of Cogema’s actual and considerable costs. The taxing officer in Mon-Oil Ltd. v. Canada, [1994] 3 F.C. D-27, held that a taxation of costs should not be predicated on hindsight. The approach used in this litigation by Inter-Church’s counsel is irrelevant because the test in these assessments of costs is what Cogema’s counsel deemed advisable to protect and advance the latter’s position. The existence of free alternatives to commercial internet databases is irrelevant. The Federal Courts Rules do not require the use of the former and disbursements for the latter are regularly allowed. As the degree of proof is a function of the individual circumstances of litigation, absolute proof of all items of costs in complex litigation, such as here, would be an unreasonable requirement. An assessment officer, faced with less than perfect evidence, should attempt to fix an amount consistent with the work performed, rather than disallow everything (see Sarasin Consultadoria e Servicos Lda v. Roox’s Inc., [2005] F.C.J. No. 907 (A.O.)). Inter-Church is responsible for Cogema’s travel costs as a function of multiple hearing venues chosen for reasons of fairness and efficiency.

[4]   Cogema argued that Inter-Church’s authorities do not stand for the proposition that public interest groups in environmental litigation are not liable for costs. For example, Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 (S.C.C.) holds that a special exemption for public interest groups would jeopardize the important principle that litigants must be prepared to accept some responsibility for costs associated with litigation. That the Court here has already awarded costs to Cogema precludes Inter-Church’s position on its liability for assessed costs.

II.   Inter-Church’s Position

[5]   Inter-Church described itself as a small community-based voluntary environmental organization which advanced this application for judicial review as a last resort in the public interest (both economic and environmental factors) relative to a waste dump acknowledged as dangerous. Both courts acknowledged Inter-Church’s sincerity in advancing this litigation. There was a measure of divided success in that, notwithstanding the adverse appeal court judgment and denial by the Supreme Court of Canada of leave to appeal, the Federal Court did allow the judicial review in the first instance. Inter-Church did not initially name Cogema, a wealthy foreign-owned multinational corporation continuing to extract considerable uranium resources from Saskatchewan, as a respondent: the latter voluntarily joined this litigation to protect its economic interests, resulting in considerable duplication of work because its position largely echoed that of the Board. The issues were straightforward, i.e. did Inter-Church have standing and did the Board err in law in not requiring an environmental screening? The parties did not dispute Inter-Church’s standing. Resources such as libraries and free internet databases are reasonable alternatives to commercial research databases, given that Inter-Church researched the same cases as Cogema. Inter-Church proposed hearing venues that would have reduced travel costs for all parties.

[6]   Inter-Church argued further to Friends of the Oldman River Society, supra, and to Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) et al., 202 N.R. 132 (F.C.A.) that courts have vacillated concerning the award of costs against public interest groups in environmental litigation. The maximum Column III units claimed here for counsel fees should be reduced to minimum allowances. As well, further to F-C Research Institute Ltd. v. Canada (1995), 95 D.T.C. 5583 (Fed. T.O.), concerning acceptable evidence in support of disbursements, the photocopying claims of $1,125.00 and $750.00 for the trial and appeal matters respectively should be reduced to actual expenditures as a function of additional and specific proof. An accounting log is not acceptable evidence in place of actual invoices or receipts. The assertion in Cogema’s evidence that it would be prohibitively expensive to identify and produce every receipt is argumentative and should be disregarded. The Law Society of Saskatchewan requires that lawyers keep invoices and receipts for client disbursements.

III.   Assessment

[7]   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 the Federal Court of Appeal did not accord Inter-Church special consideration relative to costs as a function of public interest does not preclude me from applying Rules 409 and 400(3)(h) (public interest). I do not think that, in the absence of proactive interventions by special interest groups such as Inter-Church, it can be presumed that the statutory and regulatory scheme for the phased development of uranium mining projects does not work in the public interest. Depending on one’s perspective, it could be said that Cogema’s role in this litigation had economic consequences in the public interest. It would be arguable on both sides of the issue that economic and environmental consequences had primacy over the other relative to the public interest. I acknowledge that an interlocutory decision does not ordinarily restrict or enhance the parameters of a judgment for costs. However, I note with interest that the Court’s reasons (November 7, 2002) staying the Federal Court’s judgment pending disposition of the appeals, although acknowledging Inter-Church’s environmental concerns, gave little weight in its consideration of balance of convenience to Inter-Church’s position on environmental risk, presumably a key factor in the latter’s public interest position in the circumstances of this litigation. In the circumstances here, I decline to apply a public interest factor to minimize the costs payable by Inter-Church. I find Inter-Church’s submissions concerning mixed results for costs relative to special interest groups to be irrelevant given that the Court has already exercised its Rule 400(1) discretion in favour of Cogema for entitlement to costs. As for Inter-Church’s submission that Cogema’s position largely duplicated the Board’s position, I find nothing in the record requiring a discounting of Cogema’s costs: see Halford v. Seed Hawk Inc., [2006] F.C.J. No. 629 (A.O.) paras. [190] to [212] for examples, not exhaustive, of certain considerations justifying discrete work to develop the respective legal positions of co-litigants.

[8]   I concluded at paragraph [7] in Starlight v. Canada, [2001] F.C.J. No. 1376 (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 from available ranges. In court file T-1313-99, Cogema claims maximum counsel fees for items 2 (preparation of record), 8 (once for preparation for cross-examination on affidavits on May 8 and November 24, 2000), 9 (attendance on cross-examinations), 13(a) (preparation for hearing of the judicial review), 14(a) (attendance on the hearing of the judicial review) and 26 (assessment of costs). I think there was some, but not extensive, complexity to this litigation. I allow the lower mid-range value of 5 units for item 2 and one less than the maximum (4 units) for item 13(a). I allow the maximum 5 units for the single item 8 claimed. For item 9, I allow one less than the maximum (2 units per hour) for the two-hour attendance on May 8, 2000, and the maximum 3 units per hour for the six-hour attendance on November 24, 2000. The available choices for item 14(a) are either 2 or 3 units per hour. This was neither the simplest nor the most difficult of matters. However, I would not describe it as straightforward. I could, as in the past, assign 2 units per hour to some of the six hours claimed and 3 units per hour to the balance, so as to achieve some sort of middle value for indemnification. In the circumstances, I allow the maximum 3 units per hour claimed. There was a certain economy achieved in the submissions on the assessment of costs in that the issues, with minor exceptions, were common to both bills of costs. I allow only the mid-range value of 4 units for the item 26 claimed in each bill of costs.

[9]   Each bill of costs claims item 24 (fees for the time of counsel in transit) for several trips to hearing and examination venues. Although Inter-Church did not raise it specifically as an issue, my often expressed views on my jurisdiction in this area warrant my intervention given what I perceive as general opposition to the bills of costs. The Federal Courts Act, sections 3 and 5(1) and sections 4 and 5.1(1) defining the Federal Court of Appeal and the Federal Court respectively, and Rule 2 of the Federal Courts Rules defining an assessment officer, mean that the terms “Court” (as used in item 24) and “assessment officer” refer to separate and distinct entities. Neither Court exercised visible discretion here for travel fees of counsel under item 24. I do not have the jurisdiction, in the absence of such an exercise of discretion, to allow anything. That restriction does not apply to the associated travel disbursements, for which I retain jurisdiction per Rule 405. That is, counsel fees and disbursements are distinct and discrete items of costs addressed by different portions of the Tariff, i.e. items 1 to 28 in the TABLE in Tariff B address counsel fees and Tariff B1 addresses disbursements. Accordingly, item 24 addresses counsel fees, but not disbursements. The discretion reserved to the Court(s) to authorize assessment officers to address item 24, or even item 14(b) for second counsel, is exercised distinct from the discretion vested in me by Rule 405 and Tariff B1. There is no implied caveat impeding me from allowing travel disbursements for counsel in the absence of an item 24 direction from the Court for fees for the time of counsel to travel to and from hearing and examination venues. The implications of indemnity for the professional time of counsel in transit are surely different than for charges (airlines, hotels, taxis and meals) for putting and maintaining one’s counsel at the particular venue. I therefore disallow the item 24 claims in each bill of costs. In court file T-1313-99, I allow the associated travel disbursements as presented for three trips ($319.50 and $331.62 for the cross-examinations on affidavits and $412.15 for the hearing of the judicial review).

[10]                       In court files A-528-02 and A-549-02, the claims of 6 and 12 units respectively for counsel fee items 21(a) (preparation for motions for stay and consolidation of appeals on November 6, 2002, and for motion for intervention filed March 24, 2003) and item 21(b) (attendance on November 6, 2002) plus the travel disbursements of $421.68 for the November 6, 2002 attendance are more difficult to resolve. The Court’s order dated November 7, 2002, granted the motion for stay, but was silent on costs. The order dated November 15, 2002 consolidating the appeals was also silent on costs. There were other orders silent on costs. An order dated December 20, 2002, addressing appeal book contents, specifically denied any costs. An order dated March 27, 2003, settling appeal book contents, awarded costs in the cause. The orders dated June 16, 2003, granting leave to intervene on certain conditions, awarded costs of the intervention to be determined by the panel hearing the appeal. The judgment issued on June 4, 2004 was silent on said costs of the interventions. Per my conclusions in Balisky v. Canada (Minister of Natural Resources), [2004] F.C.J. No. 536 (A.O.) at para. [6] and Aird v. Country Park Village Properties (Mainland) Ltd., [2005] F.C.J. No. 1426 (A.O.) at para. [10], I have no authority to assess costs in the face of an order silent on costs. Therefore, I disallow any costs associated with the motions addressed in this bill of costs. This includes counsel fees as well as the travel disbursements ($421.68) for the November 6, 2002 attendance. Although Cogema did not advance a claim for the costs awarded on March 27, 2003, I will exercise some discretion for an item 21(a) allowance, but at the minimum 2 units in the circumstances. I allow items 17 and 18 (preparation of notice of appeal and appeal book respectively) at 1 unit each as claimed. I reduce item 19 (memorandum of fact and law) from the maximum 7 units claimed to 5 units. I allow item 22 (attendance on the hearing of the appeals: 9 hours) at the maximum 3 units per hour claimed.

[11]                       As for the remaining disbursements, my view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 (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 think that my view is reinforced by the editorial comments (see: The Honourable James J. Carthy, W.A. Derry Millar & Jeffrey G. Gowan, Ontario Annual Practice 2005-2006 (Aurora, Ont.: Canada Law Book, 2005)) for Rules 57 and 58 to the effect that an assessment of costs is more of an art form than an application of rules and principles as a function of the general weight and feel of the file and issues, and of the judgment and experience of the assessment officer faced with the difficult task of balancing the effect of what could be several subjective and objective factors. In Almecon Industries Ltd. v. Anchortek Ltd., [2003] F.C.J. No. 1649 (A.O) at para. [31], I found certain comments in the evidence, although self-serving, nonetheless to be pragmatic and sensible concerning the reality of a myriad of essential disbursements for which the costs of proof might or would exceed their amount. However, that is not to suggest that litigants can get by without any evidence by simply relying on the discretion and experience of the assessment officer. The proof here is less than absolute, i.e. the parameters for the online research and the necessity for each and every photocopy were not in evidence. 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 which should pervade costs, to preclude prejudice to the payer of costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd.

[12]                       My decision in Englander v. Telus Communications Inc., [2004] F.C.J. No. 440 (A.O.) confirms that I routinely continue to allow online research costs. However, that process includes consideration of whether all, none or only part of the research was reasonably necessary or irrelevant, i.e. some of the searches may extract cautionary or secondary authorities, 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 relevant for final adjudication of the substantive issues of the litigation. For this category of disbursement, and others in these bills of costs, I have in mind my considerations above that Cogema is not entitled to costs as a function of orders silent on costs and that costs for the given category of disbursement may not have been incurred. The claims for online research in T-1313-99 and A-528-02/A-549-02, presented at $867.67 and $950.00 respectively, are allowed at the reduced amounts of $650.00 and $725.00.

[13]                       My comments in Canadian Union of Public Employees, Inc. v. Air Canada, [1999] F.C.J. No. 464 (A.O.) on photocopies, coupled with the parameters in para. [11] above, reflect my efforts to allow amounts for disbursements striking the appropriate balance between the right of Cogema to be indemnified for its reasonable necessary costs in the judicial review and the right of Inter-Church to be shielded from excessive or unnecessary costs. The claims for photocopies in T-1313-99 and A-528-02/A-549-02, presented at $1,125.00 and $750.00 respectively (both at $0.25 per page) are allowed at the reduced amounts of $800.00 and $675.00. The claim of $70.60 for long distance tolls in T-1313-99 is allowed as presented. The claim of $209.40 for long distance tolls in A-528-02/A-549-02 is reduced to $160.00.

[14]                       Cogema’s amended bill of costs in T-1313-99, presented at $11,376.54, is assessed and allowed at $8,963.87. Cogema’s amended bill of costs in A-528-02/A-549-02, presented at $10,031.08, is assessed and allowed at $5,960.00.

“Charles E. Stinson”