Date: 19990611
Docket: T-795-99
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Applicant
- and -
CANADA 3000 AIRLINES LTD.
Respondent
- and -
BALBIR SINGH NIJJAR
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] On May 10, 1999 I heard a motion by the Canadian Human Rights Commission to stay proceedings before the Canadian Human Rights Tribunal. The respondent Canada 3000 Airlines Ltd. opposed the motion. I denied the motion and issued written reasons, concluding with a request for written submissions on costs. Lengthy submissions were made and I have reviewed them.
[2] Canada 3000 seeks an order for costs on a solicitor and client basis, or alternatively for costs on a higher than normal scale. Commission counsel argues that the claim of Canada 3000 for costs should be limited to the normal party and party scale and should not include the costs of the main motion for stay (now abandoned), the judicial review or any proceedings before the Tribunal.
[3] I will not repeat the facts, which are stated in my reasons dated May 10, 1999. It is sufficient at the outset to say that the Commission commenced judicial review proceedings in this court to challenge the Tribunal's ruling on the admissibility of a document and also sought to stay the Tribunal's proceedings while that point was debated in the course of the judicial review. The motion before me was for an interim order staying the proceedings until the main motion for a stay could be heard two days later. My decision caused the main motion to be moot and it was abandoned.
[4] Counsel for Canada 3000 argues that the stay application caused a considerable waste of time and money. That is an undeniable fact. There was no merit whatsoever in the motion for a stay.
[5] Canada 3000 has submitted a bill of costs for the interim motion on a solicitor and client basis. The bill includes fees for the services of counsel totalling $11,193.00 excluding GST, and disbursements for long distance telephone calls, facsimile charges and photocopies totalling $469.17 excluding GST. In addition, claims totalling $5,548.08 are made for the costs of attendance, travel and accommodation for three witnesses. One is Dr. Spellman, whose evidence was interrupted upon the adjournment. The others were originally scheduled to give evidence on April 28, 1999, immediately after Dr. Spellman, but were unable to testify when the proceedings were adjourned to permit the stay application to be heard. All three witnesses had to be returned to Toronto when the hearing resumed on May 10, 1999, without the stay application having been heard.
[6] The bill of costs is supported by affidavits upon which there has been no cross-examination. In the absence of any evidence to the contrary, I accept the bill of costs as an accurate reflection of the expenses borne by Canada 3000 in respect of the motion for interim stay. On that basis the total sum thrown away was $18,026.00.
[7] Commission counsel blames the waste on the Tribunal's decision to adjourn. However, that decision was made at the request of Commission counsel, apparently based upon his representation to the Tribunal that he was prepared to bring judicial review proceedings and a stay application on the basis of a reasonable apprehension of bias. The decision to adjourn cannot be separated from the cause of the decision.
[8] The Commission argues that Canada 3000 is not entitled to costs on a solicitor and client basis. The Supreme Court of Canada said, in Young v. Young, [1993] 4 S.C.R. 3 at page 17, that solicitor and client costs:
| ... are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. |
[9] That is the standard applied in this Court: Bland v. National Capital Commission, [1993] 1 F.C. 541 (C.A.), Amway Corp. v. The Queen, [1986] 2 C.T.C. 339 (F.C.A.).
[10] Counsel for Canada 3000 argues that this standard was met because (1) Commission counsel told the Tribunal on April 29, 1999 that he had specific instructions to proceed with an immediate application for judicial review when he did not, (2) Commission counsel alleged bias against the Tribunal in order to secure an adjournment when he had no evidence to support such an allegation, and (3) Commission counsel failed to take steps to obtain an early hearing date for the stay application.
[11] The first two points suggest deliberate deceit on the part of Commission counsel in proceedings before the Tribunal. The material before me does not establish that Commission counsel was deliberately deceitful. As to the first point, I have no evidence as to what passed between the Commission and its counsel. As to the second point, I cannot fault Commission counsel for those comments. He may well have been referring to the decision of McGillis J. in Bell Canada v. Canadian Telephone Employees Assn., (19 December 1997), T-1257-97 (F.C.T.D.).
[12] The third point suggests a certain lack of diligence on the part of Commission counsel, but in the circumstances of this case, that does not justify an award of solicitor and client costs.
[13] In my view this is an appropriate case for an award of costs at a scale considerably higher than normal, with due allowance for wasted disbursements. Costs of $10,000 are awarded to Canada 3000, to be paid by the Commission forthwith.
Karen R. Sharlow
Judge
Ottawa, Ontario
June 11, 1999