Date: 20000128
Docket: T-1682-99
IN THE MATTER OF ADJUDICATION
UNDER DIVISION XIV - PART III OF THE CANADA LABOUR CODE
COMPLAINT OF ALLEGED UNJUST DISMISSAL
BETWEEN:
AGNES FRAYNN
Applicant
- and -
ERMINESKIN BAND
Respondent
ASSESSMENT OF COSTS - REASONS
CHARLES E. STINSON
Assessment Officer
[1] The Adjudicator, pursuant to the Canada Labour Code, s. 242, found that the decision of the Respondent, the Ermineskin Band, to dismiss the Complainant, Agnes Fraynn, from her job as the Assistant Manager of the Ermineskin Elders Department with the Respondent, was unjust. Pursuant to s. 242(4), the Adjudicator ordered that the Respondent pay solicitor-client costs "to be taxed pursuant to the rules of the Federal Court of Canada". The Complainant filed that Order in this Court pursuant to the Canada Labour Code s. 244(1) for enforcement and submitted a bill of costs. I set a timetable for the exchange of written materials concerning the statements of account dated April 27 and October 21, 1999 for $9,774.19 and $4,934.223 respectively.
The Respondent"s Position
[2] Generally, the Respondent argued that the two solicitor-client accounts were unreasonable and excessive and that not all of their items fell within the four corners of the litigation. The Respondent noted that, on August 14, 1998, the Adjudicator informed the parties" counsel of the hearing date set for October 5, 1998. By letter dated August 19, 1998, the Complainant"s counsel indicated that she had not been able to confirm her client"s availability and therefore the October 5th date might not be feasible. On September 2, 1998, the Adjudicator acknowledged that advice and began to explore alternative dates.
On or about September 21, 1998, the Complainant"s counsel indicated that her client was available for October 5, 1998. However, by that time, the Respondent and its witnesses were not available for October 5th . The hearing was then reset for November 27, 1998. The Respondent was advised, on November 26, 1998, of a change to the schedule for the High Commissioner of the United Nations, with whom several of the Respondent"s witnesses were to meet, necessitating an adjournment to January 27, 1999. The Respondent noted that the adjudication occupied only that one day, required only two witnesses on each side and involved an issue which was not complex either legally or factually, ie. whether the Complainant was insubordinate to her employer, Ermineskin Tribal Enterprises Ltd., by participating in a sit-in in the Band Office on September 29, 1997. The Adjudicator issued his award on April 9, 1999 and an Order incorporating the calculation of compensation on July 30, 1999, but their terms were not finalized until September 2, 1999. The Respondent requested and received , on April 27, 1999, the Complainant"s statement of account of an even date. On May 14, 1999, the Respondent initiated proceedings, which remain outstanding, for judicial review of the award. The Complainant"s Bill of Costs could not be assessed until she had filed the Adjudicator"s award on September 20, 1999.
[3] The Respondent filed these written submissions:
| ... |
| 22. It is submitted that two Statements of Account forwarded by Duncan & Craig, Lawyers and Mediators, are not fair, have not been reasonably incurred, and not all costs arise in the four corners of this litigation. There are certain recognized principles in a taxation of solicitor-client costs which have been set out as follows: |
| The solicitor-client costs are simply a more liberal indemnification of party and party costs. |
| Party and party costs at a solicitor-client level allow full indemnity provided that the costs were fair, reasonably incurred, were not patently absurd or wasteful, and the costs arise in the four corners of the litigation. |
| If the successful litigant was nervous throughout the litigation and calls his lawyer several times for reassurances and updates it may be assumed that most, if not all of these discussions are of no value or relevance in advancing the litigation. As a result, the taxing officer in the Federal Court of Canada should tax those costs off because the obligation existing between opponents in litigation to indemnify costs is not an unrestricted license, even at the solicitor-client level to run up unwarranted or unnecessary costs. Byers Transport Ltd. v. Kosanovich (1996) F.C.J. 760. |
| 23. It is submitted that the Respondent should not be held responsible for the costs incurred by Duncan & Craig"s counsel as a result of the October 5, 1998 adjournment. Duncan & Craig originally requested the adjournment as they could not confirm their client"s availability. It was not until September 21, 1998 that they contacted Parlee McLaws and advised that they were available to proceed to the hearing. However, by this date the witnesses of the Ermineskin Band were not available to attend the hearing. |
| 24. It is submitted that the Respondent should not be held responsible for the costs incurred by Duncan & Craig in relation to the adjournment of November 27, 1999. The adjournment arose through circumstances beyond the Respondent"s control. There was no application by Duncan & Craig for costs and no costs were awarded by Adjudicator Sims as a result of this adjournment. |
| 25. It is submitted that the total of 51.2 hours of billable time entered by Duncan & Craig between July 22, 1998 and January 27, 1999 is excessive considering that this matter involved a one-day Canada Labour Code hearing in which two witnesses were called by the Applicant and three witnesses were called on the part of the Respondent. |
| You will note that Duncan & Craig are claiming 32.4 hours of billable time from July 22, 1998 to November 26, 1998. In Paragraph 9 of Agnes Fraynn"s Affidavit, it is stated that Duncan & Craig had prepared to proceed to adjudication and had briefed its witnesses by November 26, 1998 and consequently Duncan & Craig would have been prepared to proceed to hearing on November 27, 1998. You will note that Duncan & Craig then spent a further 15.8 hours preparing for the hearing on January 27, 1999. It is our submission that there was an unnecessary amount of duplication in preparation for the January 27, 1999 hearing. |
| 26. It is submitted that the 3.7 hours of billable time entered by Duncan & Craig between February 3, 1999 and April 7, 1999 discussing the decision is unreasonable as there was no decision or Award made until April 9, 1999 and that these discussions were of no value or relevance in advancing the litigation. |
| 27. It is submitted that the one hour entered on April 20, 1999 for preparing Bill of Costs and further preparation and review of Bill of Costs is excessive and unreasonable as the Bill of Costs was apparently not reviewed in that certain of the descriptions refer to the matter as an "arbitration" and other descriptions refer to the matter of an "adjudication". Furthermore, we wish to point out that on January 7, 1999, Agnes Fraynn"s name was spelled incorrectly, and on January 20, 1999, Adjudicator Sims and Walter Pavlic"s names were spelled incorrectly. There are also a number of obviously incorrect time entries as follows: |
| (a) It is submitted that the entry on May 5, 1999 is partially incorrect as "a telephone conversation to Rick Beaupre-Nova and consult with Percy re enforcement of lien" cannot be related to this matter, but rather another a [sic ] file of Agnes Fraynn"s counsel. It is further submitted that the entry "telephone call to Lyle Kanee re enforcement of award" is not related to this matter, but likely rather another file of Duncan & Craig"s. |
| (b) It is submitted that the entry of September 17, 1999 is partially incorrect, as a "telephone call to V. Bennett at HRDC in procedure for enforcement" is not related to this matter, but rather another file of Duncan & Craig"s. |
| (c) It is submitted that the entry of October 1, 1999 "telephone call with Harold Country Autobodies" is not related to this matter, but rather another file of Duncan & Craig"s. |
| 28. The parties in this matter are Agnes Fraynn and the Ermineskin Band. The Respondent, Agnes Fraynn, gave evidence at the hearing on January 27, 1999 without difficulty or need for assistance. Lester Fraynn was not a party, was not a witness, nor did he attend the hearing. However, the Bill of Costs indicates numerous conversations between Duncan & Craig and Lester Fraynn. While it is reasonable to communicate with a client on a file, it is not reasonable to communicate with people who are not party to the litigation or are not witnesses. It is therefore submitted that all of the time entries related to conversations between Duncan & Craig and Lester Fraynn are unreasonable and excessive and were of not value or relevance in advancing the litigation. |
The Complainant"s Position
[4] The Affidavit of Agnes Fraynn, sworn October 22, 1999, reads:
| 1. I am the complainant named herein and as such have a personal knowledge of the matters hereinafter deposed to except where stated to be based on my information and belief in which case I do verily believe is true. |
| 2. On July 22, 1998, I retained the services of Norma Mitchell at Duncan & Craig, Lawyers & Mediators, to represent me in my complaint filed against the Ermineskin Band arising out of my unjust dismissal from my employment with Ermineskin Tribal Enterprises and the Ermineskin Band pursuant to Section 240 of the Canada Labour Code Part III. |
| 3. Pursuant to Section 241(3) of the Canada Labour Code, Mr. Andrew C.L. Sims, Q.C., was appointed as the Adjudicator to deal with my complaint of unjust dismissal against the Ermineskin Band. The adjudication was heard in Edmonton, in the Province of Alberta on January 27, 1999 and Adjudicator Sims issued his award on April 9, 1999 pursuant to Section 242 of the Canada LabourCode. |
| 4. I am advised by my counsel and do verily believe that the Order attached hereto and marked as Exhibit "A" is a true copy of the Certificate of Filing from the Registry of the Federal Court of Canada indicating that Adjudicator Sims" Order was filed September 20, 1999 pursuant to Subsection 242(4) of the Canada Labour Code. |
| 5. I make this affidavit in support of Paragraph 7 of the filed Order which states that the Respondent Ermineskin Band shall pay my costs as calculated on a solicitor/client basis. |
| 6. I am advised by my counsel and do verily believe that the attached detailed Bill of Costs (Statements of Account) and marked as Exhibit "B" and Exhibit "C" represent the time and money expended on my behalf to represent me and my interests at the adjudication and the subsequent efforts which have been made on my behalf to attempt to recover the amount ordered. |
| 7. I am advised by my counsel and do verily believe that the legal costs incurred are justified as adjudication was adjourned on two separate occasions at the request of the Respondent Ermineskin Band. The first adjournment occurred on October 5, 1998, the first date set for the adjudication, as the Band requested time to brief the newly appointed counsellors [sic] and familiarize them with the issues surrounding my complaint. |
| 8. I am advised by my counsel and do verily believe that the second adjournment occurred at the request of the Ermineskin Band on November 26, 1998, the day before the second scheduled adjudication date. I am advised by my counsel that the Band requested the adjournment based on a visit from a United Nations dignitary to the Band which would prevent the attendance at the adjudication of the appropriate council members. |
| 9. I am advised by my counsel and do verily believe that both on October 5th and on November 26th, 1998, my counsel had prepared to proceed with the adjudication, briefed the witnesses to be called and did not receive sufficient prior notice to prevent incurring the time spent to prepare. |
| 10. I am advised by counsel and do verily believe that the preparation of case authorities and written argument for the adjudication which proceeded on January 27, 1999, was a direct requirement in response to the written brief and materials served on my counsel by the Respondent Ermineskin Band. |
| 11. I am advised by my counsel and do verily believe that the Respondent Ermineskin Band has been served with a copy of the Award and the Order of the Adjudicator and has repeatedly refused to pay the amount ordered. |
| 12. I make this application in support of filing of the attached Bill of Costs and request that the Bill of Costs in this matter be taxed on a solicitor/client basis as ordered by the Adjudicator and pursuant to the Federal Court Rules. |
[5] The Complainant filed these rebuttal submissions:
| We have had the opportunity to review the written submissions of the Respondent, the Ermineskin Band. By way of rebuttal comments to the allegation raised in Paragraph 27 of the Respondent"s Brief, it is admitted that the first reference in sub-Paragraph (a) is an incorrect entry on the Bill of Costs. The reference to "a telephone conversation with Rick Beaupre-Nova and consult with Percy re enforcement of lien" is an incorrect entry which should not appear. However, the entries which follow regarding telephone conversations to Lyle Kanee regarding the enforcement of the Award and to Vince Bennett at Human Resources Development Canada regarding the procedure for enforcement are related to the enforcement of the Award issued by Adjudicator Sims. |
| The final comment in Paragraph 27(c) refers to a telephone call from one of the Fraynn"s creditors which is a direct result arising from the Respondent"s failure to pay the Award as rendered by Adjudicator Sims. |
| We apologise profusely for any spelling errors which occur on the Bill of Costs, in particular with reference to the misuse of the word "arbitration" where it should read "adjudication"and with regard to any misspelling of Adjudicator Sims" or Mr. Walter Pavlic"s name. |
| Finally, many conversations were held with Mr. Lester Fraynn on this file as Mrs. Fraynn is a traditional native woman who has no experience with the enforcement of an Award or the Canadian legal system. Mrs. Fraynn finds this procedure and the resultant delay extremely difficult to understand and requires the assistance of her husband in interpreting the various steps in the process ... |
Assessment
| [6] 22 Jul 98 Telephone call from Lester; Telephone call to 1.90 hrs. |
Andrew Sims re adjudication; Telephone call to
Walter Pavlic at Parlee; Research wrongful
dismissal;
| 24 Jul 98 Meeting with Lester and Agnes; 1.30 hrs. |
| 05 Aug 98 Telephone call to Lester; 0.20 hrs. |
| 12 Aug 98 Telephone call with Andrew Sims re: Arbitration 0.30 hrs. |
Telephone call with Agnes; Arbitration meeting;
| 18 Aug 98 Letter from Andrew Sims; 0.10 hrs. |
The record discloses that, immediately prior to the incident in the band office, the Complainant had worked for over eight years without a blemish on her employment record. As well, it discloses that she was, at the time of the incident, the sole source of her family"s income, and that she monitored the health of her husband and her daughter during the incident. The record discloses that the Complainant was interested in the issues prompting the civil disobedience, that she was present, but remained silent throughout, and that she was concerned that the involvement of her husband in the incident might exacerbate his health problems. Her husband may be assertive, but I think that the Complainant was capable of appreciating the fallout from the incident and the process to rectify it. However, her counsel was professionally obligated to obtain clear instructions and I accept that some limited help from her husband in that regard was likely necessary. Keeping the principle in Byers Transport Ltd. v. Kosanovich, supra in mind, that solicitor-client costs are not a licence to run up unnecessary costs, I allow these charges on the basis that counsel needed instructions to sort out the facts, formulate strategy and set a hearing (note the Adjudicator"s letter, two days after the August 12th entry, setting the hearing for October 5, 1998).
| [7] 24 Aug 98 Telephone call from client re arbitration; 0.20 hrs. |
| 31 Aug 98 Telephone call from Andrew Sims; 0.10 hrs. |
| 01 Sep 98 Review and amend correspondence to Agnes; 2.10 hrs. |
Review Canada Labour Code; Telephone call from
Agnes Fraynn; Letter to Agnes;
| 03 Sep 98 Fax from Andrew Sims; Telephone call to Andrew 0.10 hrs. |
Sims
| 04 Sep 98 Meeting on October 5; Telephone call to W. 0.20 hrs. |
| Pavlic; |
| 11 Sep 98 Receipt and review of letter from Parlee McLaws; 0.10 hrs. |
Telephone call to Agnes;
| 15 Sep 98 Retainer and arbitration; 0.10 hrs. |
| 18 Sep 98 Telephone call from Lester; Telephone call to 0.30 hrs. |
Wally Pavlic; Review of personnel file;
| 23 Sep 98 Telephone call with Lester; 0.20 hrs. |
| 28 Sep 98 Review and revisions to Agreed Statement of 5.80 hrs. |
Facts; Prepare Agreed Statement of Facts;
Telephone attendance with K. Cutarm; Telephone
attendance with Lester and Agnes; Research of law re
insubordination;
| 30 Sep 98 Telephone attendance with Pavlic re: Agreed 0.70 hrs. |
Statement of Facts; Telephone attendance with
Walter Pavlic re postponement; Telephone
attendance with Lester re postponement; Telephone
attendance with Lester;
| 02 Oct 98 Receipt and review of fax from Parlee McLaws; 0.10 hrs. |
| 05 Oct 98 Telephone attendance with Andy Sims re 0.20 hrs. |
adjournment;
The record satisfies me that the Complainant, and not the Respondent, was responsible for the first adjournment. The August 12th entry above discloses contact by counsel with the Adjudicator and with the client, two days before the Adjudicator issued the notice setting the October 5th date. The September 21, 1998 (a Monday) letter from counsel for the Respondent to his client, advising that the Complainant"s counsel now confirms that her client is available for October 5, 1998, follows an entry for September 18th (a Friday) including calls to both the client (her husband) and the Respondent"s counsel. The October 2nd entry likely corresponds to the October 2, 1998 letter from the Respondent"s counsel indicating that its witnesses were not available for October 5th . The Respondent may indeed have welcomed the extra time to brief new councillors on the issues, but the impetus for not remaining committed to the October 5th date stemmed from the Adjudicator"s September 2, 1998 letter advising of the Complainant"s difficulty with the October 5th date. The Complainant"s counsel did continue, ie. entry for September 28th , to prepare for a hearing. I remove 1.8 hours from this series of entries.
| [8] 13 Oct 98 Telephone attendance with Agnes to advise of 0.20 hrs. |
November 27 hearing date;
| 14 Oct 98 Telephone attendance with Andy Simms [sic] re 0.10 hrs. |
arbitration;
| 19 Oct 98 Correspondence from Parlee McLaws; 0.10 hrs. |
| 23 Oct 98 Meeting with in house counsel; Telephone 0.40 hrs. |
attendance with Agnes; Telephone attendance
with Lester re conflict;
| 28 Oct 98 Correspondence to client; Telephone attendance 0.40 hrs. |
with client; Correspondence to A. Sims and W.
Pavlic;
| 02 Nov 98 Correspondence from Andrew Sims; 0.10 hrs. |
| 03 Nov 98 Correspondence from Parlee McLaws; 0.10 hrs. |
| 18 Nov 98 Telephone attendance with W. Pavlic re 0.30 hrs. |
Agreed Statement of Facts;
| 19 Nov 98 Correspondence from Parlee McLaws; Telephone 3.40 hrs. |
attendance with W. Pavlic re settlement; review
of file; Revise Agreed Statement of Facts; Prepare
Statement of Documents; Telephone attendance with
Lester Fraynn;
| 20 Nov 98 Revise Agreed Statement of Facts; Telephone 2.90 hrs. |
attendance with W. Pavlic; Meeting with Agnes
Fraynn; Briefing witness (Kathleen Cutarm);
| 24 Nov 98 Received Instructions from N. Mitchell; 0.30 hrs. |
Telephone attendance with W. Pavlic re facts
and documents
| 25 Nov 98 Review Pavlic comments; Telephone conference 7.50 hrs. |
with Walter Pavlic re documents; Prepare for
Hearing; Further preparation for Hearing; Receipt
of correspondence from Parlee McLaws; Prepare
written argument;
| 26 Nov 98 Research cases for Norma Mitchell; Travel to pick 5.00 hrs. |
Up caes [sic] at court; Preparation for adjudication;
Telephone conference with Wally Pavlic and Andy
Sims re request for adjournment; Telephone call to
Agnes - refuses to consent to adjourn; Telephone
call to W. Pavlic; Telephone call from Walter Pavlic
& Sims; Prepare for adjudication;
The hours allowed to this point should have been ample time to prepare. That it took twelve minutes on October 13th to address re-scheduling with the client may be indicative of the strain experienced by the Complainant. However, it is not apparent what additional instructions would have been required on October 23rd from the Complainant"s husband concerning scheduling, if that is the meaning of "conflict" therein, given that notice of the requirement to postpone the November 27, 1998 date would not be made until November 26th . Generally, the entries are consistent with scheduling and preparation for a hearing which the Complainant surely anticipated, up until November 26th , would go ahead on November 27th. Settlement activities such as in the November 19th entry must be encouraged. The November 26 entry includes something likely indicative of the Complainant"s readiness to achieve closure on November 27th : the refusal to consent to adjourn. I remove 0.9 hours from this series of entries.
| [9] 02 Dec 98 Correspondence to W. Pavlic; Correspondence to 0.30 hrs. |
A. Fraynn;
| 03 Dec 98 Receipt and review of correspondence from Walter 0.40 hrs. |
Pavlic; Telephone conference with Lester Fraynn;
| 10 Dec 98 Telephone call from Lester Fraynn; 0.20 hrs. |
| 21 Dec 98 Receipt of correspondence from Sims; 0.10 hrs. |
| 06 Jan 99 Telephone attendance upon Agnes; 0.10 hrs. |
| 07 Jan 99 Telephone attendance upon Agens [sic]; 0.20 hrs. |
| 20 Jan 99 Correspondence to Simms [sic]; Telephone attendance 1.10 hrs. |
upon Pavlik [sic] re: witnesses and settlement;
Revision of Statement of Facts and Documents;
Correspondence to Pavlic; Correspondence to
client;
| 22 Jan 99 Preparation of written argument for adjudication; 2.00 hrs. |
| 25 Jan 99 Telephone attendance upon Pavlic; 0.20 hrs. |
| 26 Jan 99 Preparation of case authorities; Preparation for 11.20 hrs. |
adjudication; Preparation for meeting; Telephone
conversation with Lester Fraynn; Preparation for
adjudication; Meeting with clients;
| 27 Jan 99 Meeting with clients; Attendance at adjudication 9.00 hrs. |
re: Canada Labour Code; Meeting re: next step;
The record satisfied me that the Complainant was not responsible for the November 26 adjournment of the November 27th date. That means, however, that the Complainant"s preparation for hearing was essentially complete by November 26th . By my calculation, that represented some 21 hours up to and including November 26, 1998. This series of entries includes several more consultations with the Complainant"s husband and several more segments of hearing preparation. Some refresher work by counsel would have been necessary. I find it difficult to accept that the Complainant had not fully grasped the implications and requirements of the process. I remove 7.7 hours from this series of entries.
| [10] 03 Feb 99 Telephone conversation with client; 0.20 hrs. |
| 12 Feb 99 Telephone call from client; 0.20 hrs. |
| 16 Feb 99 Telephone call from client; re: decision; 0.40 hrs. |
Telephone call to Sims re: expected date for
decision on adjudication;
| 04 Mar 99 Review File; 0.20 hrs. |
| 09 Mar 99 Telephone call to client re: results of hearing; 0.20 hrs. |
| 15 Mar 99 Telephone call from client re: decision; 0.30 hrs. |
Telephone call to Sims re: decision; Telephone
call from Lester Fraynn;
| 19 Mar 99 Telephone call from Lester re: decision; 1.80 hrs. |
| 31 Mar 99 Telephone call from Lester re: Decision; 0.10 hrs. |
| 07 Apr 99 Telephone call from Agnes Fraynn; 0.30 hrs. |
| 12 Apr 99 Review award of A. Simms [sic]; Telephone call to 1.00 hrs. |
Agnes regarding decision; Telephone call to
W. Pavlic regarding payment of award;
| 13 Apr 99 Telephone call from W. Pavlic - re: consideration 0.80 hrs. |
of appeal Telephone call to Agnes Fraynn;
Correspondence to Agnes Fraynn; Correspondence
To W. Pavlic;
| 19 Apr 99 Telephone call from L. Fraynn re: appeal process; 0.30 hrs. |
The Adjudicator reserved on January 27th and released his decision on April 9th . The entries for services on intervening dates could very well have addressed anticipatory strategies, but I doubt it. Instead, they likely were a series of reassurances and updates properly billed as between solicitor and own client but, consistent with Byers Transport Ltd. v. Kosanovich, supra, not indemnifiable by the Respondent in solicitor-client costs. For example, after talking to the client for the third time in two weeks, counsel called the Adjudicator on February 16th for information on timing of the decision. It is unfortunate that the Complainant would not have incurred these costs but for the conduct for the Respondent. However, the adjudicative system which provided her with relief relative to said conduct, including solicitor-client costs, also limits the onus for costs which she can transfer to the Respondent, ie. to only those costs necessary to advance the proceeding and reasonably ensure success. Several of these entries do not meet that threshold. The consultations with the client concerning appeals belong in a different piece of litigation, but I can understand that they could initially have been wrapped up in advice concerning settlement of terms and payment and I therefore allow their associated time within the April 13th entry. However, the April 19th consultation six days later with the Complainant"s husband is preliminary to the judicial review process and therefore beyond the scope of this Adjudicator"s award. These consultations were not relevant to settling the terms of the Adjudicator"s Order issued in draft on June 30, 1999 and in final form on July 30, 1999. Therefore, except for the hours recorded for April 12th and 13th, I remove everything else from this series of entries ie. 4 hours.
| [11] 20 Apr 99 Prepare Bill of Costs; Further preparation and 1.00 hrs. |
review of Bill of Costs;
| 21 Apr 99 Telephone call from Lester Fraynn; 0.20 hrs. |
| 22 Apr 99 Telephone call from Lester Fraynn; Telephone 0.50 hrs. |
call from Agnes;
| 26 Apr 99 Review Federal Rules re: Costs; Prepare closing 0.80 hrs. |
documents;
I remove 0.3 hours from this series of entries. In this statement of account, counsel billed 58.7 hours at $130.00 per hour and 8.2 hours at $140.00 per hour. If junior lawyers are not involved, I would expect the higher billing rate to apply to the most recent hours. However, the hours for February 12 - April 26, 1999 inclusive total only 8.1 hours, and not 8.2 hours. I have assumed that billings from February 3rd forward were at $140.00 per hour. I remove 10.4 hours at $130.00 per hour and 4.3 hours at $140.00 per hour plus associated GST. An amount of $315.76, divided as $185.04 under Other Fees and $130.72 under Taxable Disbursements, was not in issue. A GST calculation was applied to both. Ordinarily, third party suppliers include GST in their invoices. The invoices are not on the record and I let the $315.76 stand. The statement of account dated April 27, 1999 is allowed at $7,683.41.
| [12] 26 Apr 99 Telephone from Lester Fraynn; 0.20 hrs. |
| 28 Apr 99 Meeting with C.A. Fraynn; Telephone call to 0.40 hrs. |
W. Pavlic re: costs;
| 29 Apr 99 Telephone call to A. Sims re: Order; Telephone 0.90 hrs. |
call to Federal Court and attendance at Federal
Court re: filing of Order; Telephone call from
Walter Pavlic re: decision to appeal;
| 30 Apr 99 Telephone call from Fraynn re: appeal; 0.20 hrs. |
| 05 May 99 Telephone call to Rick Beaupre - NOVA; 0.90 hrs. |
Telephone call from Lester re: Judicial Review
of Decision; Telephone call to Lyle Kanee re:
enforcement of award; Correspondence to Mr. Sims;
Correspondence to Mr. Pavlic; Consult with Percy re:
enforcement of lien;
| 12 May 99 Telephone call to Walter Pavlic re: costs; 0.60 hrs. |
Research Federal Rules of Court re: application
for judicial review;
| 13 May 99 Telephone call with Walter Pavlic re: settlement; 0.60 hrs. |
Telephone call with Agnes Fraynn re: settlement
and Judicial review process;
| 17 May 99 Telephone call to Walter Pavlic re: settlement; 0.20 hrs. |
| 18 May 99 Telephone call to Andy Sims re: Order; Research 3.20 hrs. |
procedure for filing award in Federal Court;
Research grounds fro [sic] appeal of adjudicators;
| 20 May 99 Telephone call from Agnes re: status of Judicial 2.30 hrs. |
Review; Telephone call to Andrew Sims; Meeting
with Agnes re: enforcement of award; Draft
application to oppose judicial review;
| 30 May 99 Receipt and review of letter from A. Sims; 0.10 hrs. |
| 02 Jun 99 Telephone call from James Baird of Justice Canada 0.30 hrs. |
as to substitution of Agnes Fraynn for Attorney
General in Judicial Review application;
| 03 Jun 99 Telephone call from Agnes re: progress of appeal; 0.60 hrs. |
Receipt and review of Notice of Motion and
Consent Order of Attorney General;
| 09 Jun 99 Telephone call from Colleen Verville; 0.20 hrs. |
| 11 Jun 99 Telephone call from Agnes re: procedure of 0.30 hrs. |
Judicial Review;
| 14 Jun 99 Telephone to Colleen Verville re: Fraynn; 0.20 hrs. |
| 15 Jun 99 Correspondence to J. Baird re: Consent Order; 1.10 hrs. |
Correspondence to R. Pavlic re: damages
calculations; Correspondence to Adjudicator
Sims; Correspondence to Agnes Fraynn; Review
award and file;
| 21 Jun 99 Telephone call from Lester Fraynn; Telephone call 0.40 hrs. |
to Walter Pavlic;
| 22 Jun 99 Telephone call to Colleen Verville re: settlement 0.20 hrs. |
proposal;
| 23 Jun 99 Correspondence from A. Sims re: Quantification of 0.10 hrs. |
of Award;
| 24 Jun 99 Correspondence from W. Pavlic; Telephone call 1.40 hrs. |
from Lester Fraynn re: calculations; Review
Factum of the Attorney General re: Notice of
Motion application;
| 30 Jun 99 Telephone call from Lester re: Settlement 0.20 hrs. |
discussions;
There appear to be four distinct streams coursing through this series of entries: settlement, quantification, enforcement and appeal. Given the emotions associated with the incident, I think it likely that the Complainant was alarmed at the Respondent"s decision to institute judicial review at a time when several more weeks were required to finalize the terms of the Adjudicator"s award. It is fair for the Complainant to recover reasonable costs associated with settlement of terms or even outright settlement. However, the costs associated with the judicial review are a separate matter and I cannot presume or anticipate the Court"s discretion under Rule 400, whether party and party or solicitor-client, by assessing them as a function of this Adjudicator"s proceedings. I approve a minimal amount for the Complainant to initially sort through this. I remove 7.5 hours from this series of entries.
| [13] 19 Jul 99 Telephone call from Agnes Fraynn; Correspondence 0.60 hrs. |
from A. Sims re: damage calculation; Telephone
call to W. Pavlic re: Settlement negotiation and
consent to damages as awarded by Sims;
| 22 Jul 99 Correspondence from Federal Court and Consent 1.20 hrs. |
Order re: substitution of A. Fraynn; Telephone
call from L. Fraynn re: discrimination by Band
against Agnes re: training funds and loan
obligations; Prepare financial calculation for
award; Correspondence to Walter Pavlic;
Correspondence to client;
| 26 Jul 99 Telephone call from C. Verville re: calculations; 0.50 hrs. |
Correspondence to A. Sims re: Order;
Correspondence to W. Pavlic re: Order,
| 30 Jul 99 Telephone call from C. Verville; Telephone call 0.20 hrs. |
to A. Simms [sic] re: Order;
| 04 Aug 99 Receipt and review of Order of Sims; Telephone 0.60 hrs. |
call from C. Verville re: taxation; Telephone
call to W. Pavlic re: Sims" Order; Telephone call
from Colleen Verville;
| 10 Aug 99 Telephone call with Walter Pavlic re: Sims" 0.20 hrs. |
letter and a date for Judicial Review;
| 23 Aug 99 Telephone call from A. Sims re: Order; 0.50 hrs. |
Telephone call to W. Pavlic re: approval of
Order; Telephone call from A. Fraynn re:
status; Telephone call to A. Sims re: Pavlic lack of
Consent;
| 24 Aug 99 Fax to W. Paulic [sic]; 0.10 hrs. |
| 25 Aug 99 Review of letter from Andrew Sims; 0.10 hrs. |
| 31 Aug 99 Telephone call from Walter Pavlic requesting 0.40 hrs. |
copy of calculations for consent; Telephone
call to Walter Pavlic re: taxation of Bill of Costs
and Sims" Order;
| 02 Sep 99 Correspondence from Pavlic re: approval of Order; 0.20 hrs. |
| 10 Sep 99 Telephone attendance with Sinclair at Canada 0.30 hrs. |
Labour re: filing Adjudicator"s Order;
This series of entries includes receipt of the final version of the Adjudicator"s Order. Some entries, such as July 22nd concerning "Telephone call from L. Fraynn re: discrimination by Band against Agnes re: training funds and loan obligations", are difficult and likely impossible to link to settlement, quantification, the judicial review or enforcement. More likely, this reflects, and relates to, tensions between the Band and the Fraynns. While the September 10th entry likely addressed research, I doubt whether that government office could provide information relevant and additional to counsel"s previous time in researching the means of enforcement. The August 10th entry appears to address the judicial review. The Complainant is entitled only to those costs of legal representation arising out of the incident and associated with her pursuit of a remedy before the Adjudicator. I remove 1.3 hours from this series of entries.
| [14] 13 Sep 99 Receipt and review of correspondence from C. 0.10 hrs. |
Verville re: info on taxing Bill of Costs in
Federal Court;
| 15 Sep 99 Telephone call to Ron Sinclair at Canada Labour; 2.85 hrs. |
Telephone call to Glenn Marko re: Affidavit of
Justification to file Adjudicator"s Order;
Correspondence to Federal Dept. of Justice re:
filing of Order; Attendance in Federal Court;
Travel Time to serve Notice of Appearance at Parlee
McLaws and Filing at the Federal Court;
Travel Time (serving Notice of Appearance and
filing); Serve Notice of Appearance on W. Pavlic;
| 16 Sep 99 Federal Court issues re: Order and Bill of Costs; 2.00 hrs. |
| 17 Sep 99 Telephone call to C. Verville re: appearance 2.40 hrs. |
before Motions Judge; Telephone call to Cathy
Dubranski [sic] re: procedure to file Order ; Telephone
call to V. Bennett at HRDC re: procedure for
enforcement; Research Federal Rules on QL Search
re: requirement for affidavit; Telephone call to C.
Verville re: attendance at Federal Court for advice
and direction; Telephone call to C. Stinson re: content
of Affidavit to support Adjudicator"s Order;
| 19 Sep 99 Telephone call to Andrew Sims re: certified 2.20 hrs. |
copies of the Order; Draft Affidavit for Agnes
Fraynn to support filing of Order; Telephone call
to A. Fraynn to advise of status and need for
Affidavit; Research enforcement of Order and case
law;
| 20 Sep 99 Telephone call from Chuck Stinson re: the new 1.50 hrs. |
Rule 424(4) regarding enforcing an Order of a
tribunal; Telephone call from Human Resources -
Labour Officer Ron Sinclair re: procedure; Fax
from Colleen Verville re: application to Federal
Court for advice & direction; File Order at
Federal Court; Meeting with Agnes to swear
Affidavit;
| 21 Sep 99 Travel Time, pick up filed Order at Federal Court; 0.10 hrs. |
| 28 Sep 99 Telephone call to C. Stinson re: taxation of Bill 0.90 hrs. |
of Costs; Telephone call from A. Fraynn re:
progress of claim; Correspondence to A. Fraynn
outlining next steps re: taxation and enforcement;
Receipt and review of information from Federal Court
re: format and procedure
| 30 Sep 99 Telephone call from A. Fraynn re: status of Order 0.20 hrs. |
and date to receive funds;
| 01 Oct 99 Telephone call with Harold from Country 0.10hrs. |
Autobody;
| 06 Oct 99 Telephone call from Lester re: contents of 0.20 hrs. |
letter & envelopes being opened;
| 17 Oct 99 Draft Affidavit re: Bill of Costs for Federal 1.00 hrs. |
Court; Correspondence to Ermineskin Band -
Walter Pavlic;
The case law1 on the contents of the affidavit supporting the filing of an award is straightforward. Rule 424 complements it. The record does not convince me, in terms of the principles enunciated in Byers Transport Ltd. v. Kosanovich, supra, that the Respondent should bear all of the hours billed for September 15-20, 1999 associated with gaining an understanding of the requirements for enforcement of the award, including assessment of the bill of costs. There were entries throughout that were likely unrelated to the authority of the Adjudicator"s award, ie. the notice of appearance (September 15th ); appearance before motions Judge (September 17th); Harold from Country Autobody (October 1st), and letter and envelopes being opened (October 6th). The explanation for the October 1st entry, that it originated with a creditor because of the Respondent"s failure to pay the Adjudicator"s award, presumes that the debt resulted from the Respondent"s conduct. That is not so. The Respondent"s conduct may have affected whether the Complainant"s resources were applied to this debt, but that still remains outside the parameters for indemnification, ie. a service which moves the litigation towards completion. Again, for September 15th and 20th, there are consultations concerning procedure with a government official for which I do not see any value in the context of court practice and procedure. The entry for October 6th likely relates to tension between the Band and the Fraynns, but not so as to warrant indemnification in this context. The entries for September 15th and 17th likely relate in part to the judicial review. The entries for September 28th and 30th include calls for updates from the client and appear, in my opinion, as were other entries throughout both statements of account for which I removed or reduced hours, to have been properly billed as between solicitor and own client. They were not likely integral to advancement of these proceedings, given the amount of time spent to date with the client, and therefore are not indemnifiable in the solicitor-client context. The conversations with me referred to in the statement of account avoided the specifics of the Bill of Costs and were confined to matters of practice and procedure. I remove 7.5 hours from this series of entries.
[15] In the second statement of account, time was billed for lead counsel and two additional counsel: 30.6 hours for lead counsel at $140.00 per hour, plus 1.75 and 0.7 hours at $60.00 per hour and $110.00 per hour respectively for the other two counsel. I remove 16.3 hours at $140.00 per hour. However, as item 26 in the block tariff for partial indemnity at the party and party level contemplates an estimate for a service not yet performed, ie. appearance at assessment, I exercise discretion to add 3 hours to this account for counsel"s work in effecting my November 4, 1999 direction concerning the exchange of written materials and preparation of rebuttal materials. As above, a GST calculation was applied to $131.75 under Other Fees and $13.68 under Taxable Disbursements, neither of which were in issue. As above, in the absence of invoices, I allow these amounts. The statement of account dated October 21, 1999 is allowed at $2,941.89.
[16] The Complainant"s bill of costs, presented at $14,708.42, is assessed and allowed at $10,625.30.
"Charles E. Stinson"
Assessment Officer
Dated, this 28th day of January, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1682-99
STYLE OF CAUSE:
IN THE MATTER OF ADJUDICATION
UNDER DIVISION XIV - PART III OF THE CANADA LABOUR CODE
COMPLAINT OF ALLEGED UNJUST DISMISSAL
BETWEEN:
AGNES FRAYNN
Applicant
- and -
ERMINESKIN BAND
Respondent
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS - REASONS BY: CHARLES E. STINSON
DATED: January 28th, 2000
SOLICITORS OF RECORD:
Duncan & Craig
Edmonton, Alberta for the Complainant
Parlee McLaws
Edmonton, Ablerta for the Respondent
__________________1 Paradis v. Verrault Navigation Inc. et al, [1978] 2 F.C. 147 (F.C.A.)