Date: 20040218
Docket: T-2323-98
Citation: 2004 FC 246
BETWEEN:
LAC LA RONGE INDIAN BAND
Applicant
and
CHACH REDSKY
Respondent
and
LAC LA RONGE INDIAN BAND
Applicant
and
WILFRED CARDINAL
Respondent
ASSESSMENT OFFICER
[1] A copy of these Reasons is filed today in each of court files T-2324-98 (Respondent Wilfred Cardinal), T-2280-98 (Respondent Larry Laliberte), T-2281-98 (Respondent Sol Charles) and T-2282-98 (Respondent Robert Ballantyne) and applies there accordingly. The Applicant in this matter was the same Applicant in each of these other four matters. The Applicant in each matter applied to set aside decisions of an adjudicator appointed under the Canada Labour Code which had found that the dismissal of each Respondent was unjust and which ordered remedial measures, varying from Respondent to Respondent as there were some differences between the complaints in terms of the results sought, including issues of jurisdiction, reinstatement, payment of lost wages and damages.
[2] The adjudicator made two decisions. The first (November 4, 1998) addressed Larry Laliberte, Sol Charles and Robert Ballantyne (hereafter "Laliberte et al") (there were three distinct cases, but the parties had agreed that they would be heard together and that one decision would issue). The second (November 12, 1998) addressed Chach Red Sky and Wilfred Cardinal (hereafter "Red Sky et al") (there were two distinct cases, but the parties had agreed that they would be heard together, that one decision would issue and that, to the extent it was relevant, evidence previously led in Laliberte et al could be considered). The Federal Court issued an order consolidating the applications on behalf of Laliberte et al for judicial review and a similar order consolidating the applications on behalf of Red Sky et al. The Court then heard the two consolidated proceedings at the same time, but issued two separate decisions. For Laliberte et al, the Court dismissed the application for judicial review, but noted that the Respondents had been represented by one solicitor throughout and therefore awarded a single set of Column IV costs between them. For Red Sky et al, the Court dismissed the application for judicial review and also awarded the Respondents a single set of Column IV costs. As well, on May 17, 1999 in each proceeding, the Court awarded costs to each Respondent after dismissing the Applicant's motion for late filing of affidavits after the expiration of Rule 306 time limits. I issued a timetable for written disposition of the seven bills of costs on behalf of the Respondents. The two Column IV bills of costs for the judicial reviews (one in each consolidated proceeding) were identical in every respect (save for style of cause and references to named Respondents) and each totalled $6,383.14. The five bills of costs for the interlocutory matters addressing late filing of affidavits (one in each proceeding) were identical in every respect (save for style of cause and references to named Respondents) and each totalled $944.13.
The Applicant's Position
[3] For each Column IV bill of costs, the Applicant noted that the Respondent claimed the maximum number of units for each counsel fee item and argued that only the minimum number of units can be allowed in the absence of evidence of the number of hours claimed for each fee item. The Applicant argued in particular that item 14 (appearance at the hearing) should not be allowed at five hours in the absence of supporting evidence.
The Respondent's Position
[4] For each Column IV bill of costs, the Respondents argued that multiple proceedings and associated work to oppose each judicial review; work and delays caused by the Applicant's conduct in raising and alleging all manner of issues regardless of their merit; the complexity of the issues and the favourable result with costs all warrant maximum units for each claimed counsel fee item. For item 14, the Respondents argued that an entire court day had been set aside for the hearing of the judicial reviews and that said hearing, in fact, took most of the day. The Respondents therefore assert entitlement to the 5 hours, but will defer to the Court records if the latter indicate otherwise. The Respondents asserted that the five bills of costs for the interlocutory matters should be assessed and allowed in the absence of opposition from the Applicant.
Assessment
[5] That the Court has made an otherwise order under Rule 407 for something other than Column III costs does not automatically trigger an entitlement to maximum values in the ranges for counsel fee items. One of the fundamental principles of costs in superior courts, captured for example in the broad discretion vested in this Court by Rule 400(1), is the capacity to control their process by awarding or denying costs. Thus, if the conduct of a litigant, who is ultimately successful, is found to have contributed to unnecessary work or to have been the source of delay, the Court may signify its disapproval by denying or adjusting costs, i.e. solicitor-client or lower or higher Column allowances.
[6] I have read the record that was before the Court. The circumstances of each dispute between the Applicant and respective Respondents did differ, but there were also linkages which may have simplified the requisite approach overall. In my opinion, the effort required to respond to the litigation flowing from each dispute did not generally warrant maximums in the ranges. 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 needed not be used as each item for the services of counsel must be considered in its own circumstances.
[7] The supporting evidence warrants some comments. An individual affidavit, with a style of cause specific to each respective court file, was sworn in support of each of the five interlocutory bills of costs. The body of each affidavit is identical and reads "... I have calculated all disbursements incurred ... in the above noted matters as follows: a) Disbursements from the decision of the Adjudicator, Ms. Anne M. Wallace on November 12, 1998 to the Order of Mr. John A. Hargrave on March 26, 1999 ...". In fact, the motion records were filed on March 26, 1999 and the resultant orders, denying late filing of affidavits, were dated May 17, 1999. As well, the adjudicator's decision relative to Laliberte et al was dated November 4, 1998 and not November 12, 1998. The use of the plural "matters" to refer to a single proceeding might raise the question of whether the same set of disbursements, which are identical, i.e. $74.03, in each of the five bills of costs, are inadvertently claimed in full in each bill of costs when in fact only $74.03 applied to the five interlocutory events in total. It is common for counsel, having authorized one set of disbursements for coincident events in multiple proceedings, to assert in supporting evidence that the total costs have been apportioned equally among respective bills of costs. That did not occur here and it is not evident whether it should have, but I find that the amounts of $74.03 (inclusive of GST) are not so inappropriate as to warrant my interference.
[8] The Federal Court Rules, 1998 do not contemplate a litigant 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, an assessment officer cannot certify unlawful items, i.e. those outside the authority of the judgment and the tariff. I examined each item claimed in these five bills of costs and the supporting materials within those parameters. The amount claimed in total in each bill of costs is arguable within the limits of the awards of costs. Further to my conclusions in Webster v. Canada (Attorney General), [2003] F.C.J. No. 1652 (A.O.), the judgment in each consolidated proceeding (Red Sky et al and Laliberte et al respectively) restricting the multiple Respondents to a single set of costs does not interfere with the authority the five interlocutory orders granting to each Respondent respectively his own set of Column III costs. Therefore, I allow each of the five interlocutory bills of costs as presented at $944.13.
[9] An individual affidavit, with a style of cause specific to each respective consolidated proceeding (Red Sky et al. and Laliberte et al), was sworn in support of each of the two bills of costs presented further to the judgments on the judicial reviews. The body of each affidavit is identical and reads "... I have calculated all disbursements incurred ... in the above noted matters as follows: a) Disbursements from the Order of Mr. John A. Hargrave on March 26, 1999 to the Order of Justice Denis Pelletier on March 26, 1999 to May 15, 2000 ...". As it happened, judgment in Red Sky et al. was dated May 12, 2000, although filed on May 15, 2000. Given that disbursements are identical in each bill of costs, i.e. $292.44 (inclusive of GST), a question as to apportionment might also be raised.
[10] The Applicant's submissions addressed fees, but not disbursements. Those submissions also did not object to the inclusion in each of these two bills of costs of an item 5 claim for preparation of a response to the motion for late filing of affidavits notwithstanding that claims for said work were already addressed in the five bills of costs above. The evidence is scanty, but my feeling is that the disbursement total of $292.44 in each of these two bills of costs somehow incorporates disbursements already addressed in the five interlocutory bills of costs. I disallow the item 5 claim in each of the two bills of costs. For want of a better approach, I reduced the disbursement total in each of the two bills by $74.03 (inclusive of GST) being the disbursement total in each of the five interlocutory bills of costs.
[11] The Applicant also did not object to the inclusion of an item 4 claim in each of these two bills of costs addressing an uncontested motion for consolidation of proceedings. The orders of Mr. Hargrave approving consolidation, made on consent, each specifically provided that no costs be awarded. I disallow the item 4 claim in each bill of costs and I reduce the disbursement total accordingly in each bill by $35.00 (inclusive of GST). The inclusion, in supporting materials for a party and party bill of costs, of the actual hours billed to the client for counsel's time is useful and can be relevant, but is not strictly essential. I allow items 2 (Respondent's materials) and 13(a) (preparation for hearing), presented at 9 units each, at 7 and 6 units respectively. The Court records indicate that these matters took the better part of a day, but it is not evident from the materials how apportionment of hours between the respective consolidated proceedings should occur. The effect of the combination of these two bills of costs is an accumulated claim under item 14(a) of 10 hours, or approximately twice the actual hearing day. Although the judgments in the respective consolidated proceedings do not address this specifically, I think that the sense of the Court's dispositions of costs, i.e. the respective limitations to single sets of costs, was that these matters were intertwined. For want of a better approach, I apportion 2.5 hours to each consolidated proceeding (Red Sky et al. and Laliberte et al respectively) at the maximum of 4 units per hour. Each of these two bills of costs, presented at $6,383.14, is assessed and allowed at $3,042.31.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, British Columbia
February 18, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2323-98
STYLE OF CAUSE: Lac La Ronge Indian Band v. Chach Redsky
ASSESSMENT OF COSTS IN WRITING WITHOUT
PERSONAL APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: February 18, 2004
SOLICITORS OF RECORD:
Eggum, Abrametz & Eggum FOR APPLICANT
Prince Albert, Saskatchewan
Bruce J. Slusar FOR RESPONDENTS
Saskatoon, Saskatchewan