Docket: A-747-99
Neutral citation: 2002FCA120
BETWEEN:
International Brotherhood of Locomotive Engineers
Applicant
-and-
George Cairns et al, Via Rail Canada Inc. and United
Transportation Union
Respondents
AND BETWEEN: A-749-99
Via Rail Canada Inc.
Applicant
-and-
George Cairns, International Brotherhood of Locomotive Engineers and United Transportation Union
Respondent
Certificate of Assessment
I hereby certify that the costs of the Respondent, George Cairns et al., have been assessed
and allowed at $10434.55.
« Paul. F. Scott »
____________________________
Paul F. Scott
Assessment Officer
Docket: A-747-99
Neutral citation: 2002FCA120
International Brotherhood of Locomotive Engineers
-and-
George Cairns et al, Via Rail Canada Inc. and United
Transportation Union
Respondents
AND BETWEEN: A-749-99
Via Rail Canada Inc.
Applicant
-and-
George Cairns, International Brotherhood of Locomotive Engineers and United Transportation Union
Respondent
Certificate of Assessment
I hereby certify that the costs of the Applicant, International Brotherhood of Locomotive
Engineers, are assessed and allowed at $3443.78.
« Paul F. Scott »
____________________________
Paul F. Scott
Assessment Officer
Docket: A-747-99
Neutral citation: 2002FCA120
BETWEEN:
International Brotherhood of Locomotive Engineers
Applicant
-and-
George Cairns et al, Via Rail Canada Inc. and United
Transportation Union
Respondents
AND BETWEEN: A-749-99
Via Rail Canada Inc.
Applicant
-and-
George Cairns, International Brotherhood of Locomotive Engineers and United Transportation Union
Respondent
Certificate of Assessment
I hereby certify that the costs of the Respondent, United Transportation Union, are
assessed and allowed at $15740.13
« Paul F. Scott »
____________________________
Paul F. Scott
Assessment Officer
Date: 20020325
Docket: A-747-99
Neutral citation: 2002FCA120
BETWEEN:
International Brotherhood of Locomotive Engineers
Applicant
-and-
George Cairns et al., Via Rail Canada Inc. and United
Transportation Union
Respondents
AND BETWEEN: A-749-99
Via Rail Canada Inc.
Applicant
-and-
George Cairns, International Brotherhood of Locomotive Engineers and United Transportation Union
Respondent
Assessment of Costs - Reasons
Paul F. Scott
Assessment Officer
[1] This assessment originally commenced as an assessment of a bill of costs submitted on January 23, 2001 by the International Brotherhood of Locomotive Engineers (hereafter, "BLE"), Applicant in a judicial review application (court record A-747-99) and a Respondent in the judicial review application (file A-749-99) commenced by Via Rail Canada Inc. ("VIA"). Both section 28 proceedings were filed in the Registry on November 19, 1999. VIA also filed a second application for judicial review on May 29, 2000 (file A-369-00) which was then consolidated with the first two referenced files.
[2] Pursuant to orders of the Federal Court of Appeal (Sexton, J.A.) dated January 17, 2000, BLE was awarded costs of its interlocutory applications filed pursuant to sections 18.2 and 50(1) of the Federal Court Act to stay two orders of the Canada Industrial Relations Board ("CIRB") dated October 2, 1999 and December 9, 1999 (decision no. 35, CIRB file number 19838) pending final determination of applications for judicial review of the two board decisions. Costs were ordered to be paid jointly by George Cairns et al. ("Cairns et al. ") and the United Transportation Union ("UTU"). In staying the two CIRB orders, the Court of Appeal concluded that BLE and VIA had satisfied a three part test enunciated by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General) as to whether a stay should be granted. An application for leave to appeal by UTU from this order to the Supreme Court of Canada was subsequently dismissed on September 21, 2000. Accordingly, on January 23, 2001, counsel representing BLE filed their bill of costs and supporting material pursuant to Federal Court Rule 400. A Notice of Change of Solicitors in respect of the Respondents Cairns et al. and UTU was filed and served on March 19, 2001. On March 21 and 22, 2001, the applications for judicial review were heard by the Court of Appeal and judgments were reserved. Final judgments were pronounced on May 2, 2001, each judicial review application being dismissed with costs in favour of respondents Cairns et al. and UTU. The stay of the remedial order of the CIRB was vacated and the matter was remitted to the Board with specific directions.
[3] On April 3, 2001, the Registry's assessment co-ordinator, taking notice of the request contained in BLE's submissions of January 23, 2001, directed that the assessment be disposed of by written submissions. The parties followed a timetable for service and filing of all materials supporting their positions. The time limit for filing material ended on May 23, 2001. Following the final judgment of May 2, 2001, UTU and Cairns et al. filed their bills of costs on August 22, 2001. The Registry then issued a further timetable for filing submissions and supporting documentation which expired on October 3, 2001. In summary, I now have three bills of costs before me for assessment: BLE's bill on the interlocutory motion for a stay filed January 23, 2001, UTU's bill filed August 22, 2001 and that of Cairns et al. filed on the same date. At the time of the filing of their bill, the unit value of the tariff was $100.
[4] # 1: Bill of Costs of International Brotherhood of Locomotive Engineers filed January 23, 2001 re the Court's order of January 17, 2000 on a motion for a stay of proceedings with costs to BLE.
A. COUNSEL FEES
ITEM DESCRIPTION OF SERVICE COLUMN/UNITS AMOUNT
1 Preparation and filing of originating
documents III/5 $ 500.00
5 Preparation and filing of contested motion
including materials III/7 $ 700.00
6 Appearance at Motion (7 hours) III/3 $2 100.00
24 Travel to and from Motion III/1 $ 100.00
25 Services after Judgment III/1 $ 100.00
26 Assessment of Costs III/5 $ 500.00
27 Other services, namely preparation of
Memorandum of fact and law III/2 $ 200.00
Sub-Total of Counsel Fees $4 200.00
Taxes on Fees (7%GST) $ 294.00
TOTAL COUNSEL FEES $4 494.00
B. DISBURSEMENTS
Quick law Search $ 132.38
Bailiff Fee for Service $ 40.00
Fax Charges $ 29.75
Photocopying Charges $ 287.25
Long Distance Telephone $ 1.89
Parking $ 1.87
Courier Charges $ 25.35
Sub-Total of Disbursements $ 518.49
Taxes on Fees (7%GST) $ 36.29
TOTAL DISBURSEMENTS $ 554.78
TOTAL COUNSEL FEES AND DISBURSEMENTS $5 048.78
[5] This is a party and party assessment in accordance with Rule 407, the format prescribed by the Federal Court Rules, 1998 and the amounts permitted under Tariff B. BLE's bill is based on the rate of $100 per unit and is made under column 111 of tariff B. Pursuant to the order of January 17, 2000, BLE and VIA were awarded costs of the stay application to be paid jointly by Cairns et al. and UTU.
[6] In their submissions, inter alia, counsel for BLE submit that the amounts claimed were incurred and billed to their client over the period described in the affidavit of Scott Chamberlain dated January 18, 2001 and that the amounts claimed are less that 1/3 of the actual costs billed as a result of the application. Furthermore counsel submit that the stay motion was critical to and would significantly impact in an irreversible and costly manner the interests of hundreds of employees, VIA, the Canadian National Railway, BLE and UTU. In addition, it is argued that the issues and facts were important and complex, the parties being required to prove matters which were prospective in nature but, for example, had not yet occurred and therefore necessitated more detailed and comprehensive preparatory work. Other submissions are made in support of the bill. My partial summary here is not intended to be comprehensive list of all of the points in the supporting material filed and on the court record. I have read and considered all of BLE's submissions herein.
[7] With respect to the bill submitted, in rebuttal, counsel for UTU and Cairns et al. argue that item 1 in relation to preparing and filing originating documents is improper and ought not to be included in relation to a motion because of the Court's final disposition on the judicial review applications. With respect to item 5, it is submitted that the amounts claimed are excessive and that no more than $300 should be awarded. Regarding item 6, it is submitted that no more than $700 should be allowed and that under items 24, 25, 26 and 27, no award of costs ought to be made whatsoever as the claims are improper. Counsel argue that BLE's claim for costs ought not to exceed $1000 for counsel fees and that therefore, combined with the disbursements they claim, the total assessment for both categories should not exceed $1, 554.78.
Disbursements
[8] I will begin with the disbursements. BLE claims total disbursements of $518.49 plus GST for such items as Quick Law search, bailiff fees for service, fax and photocopying charges, long distance telephone calls, parking and courier fees. These items are established by affidavit. Opposing counsel, in paragraph 13 of their submissions, did not dispute their reasonableness. Accordingly I allow the disbursements claimed in full plus taxes.
Counsel Fees:
[9] Item 1: $500 is claimed for preparation and filing of originating documents. BLE and VIA were granted costs of their interlocutory motion for a stay of the two orders of the CIRB, not for preparation and filing of originating documents. Their motion and supporting material do not qualify as " originating documents". Counsel have made such a claim in the very next item to be considered in this bill. I agree with the Respondents' submissions. This item is disallowed.
[10] Item 5: 7 units, the maximum, are claimed for preparation and filing of a contested motion for a stay including supporting materials and responses. In my opinion, there is nothing in the supporting material that would allow me to agree with counsel that the preparation and filing of the motion and supporting documents was complex. Accordingly, I allow 5 units for $500.
[11] Item 6: $2100 is claimed by BLE (maximum 3 units x 7 hours) for counsel's appearance at the hearing of the stay motion. The Court record shows that the hearing was approximately 5. 5 hours in duration. Counsel's travel time to and from this hearing is addressed by a claim under item 24. Accordingly, in these circumstances, I find it reasonable and appropriate to assess 6 hours at 3 units per hour. $1800 is allowed. VIA did not file a bill of costs.
[12] Items 24 and 25: 1 unit in each category is claimed for travel to and from the motion hearing and for services after judgment. Counsel for UTU and Cairns et al. have argued that no award should be made in respect of these particular items. The travel claim for the motion is allowed as claimed but the fee for services after judgment is denied. There was no final judgment at this point in the proceedings. Justice Sexton rendered an order disposing of an interlocutory motion on January 17, 2000, not a final judgment on the proceedings as a whole.
[13] Item 26: 5 units are claimed for work done to prepare for and file the bill and supporting material in this assessment. Respondents' counsel oppose it. Costs were awarded to this party by order. Preparation for this assessment and the documents filed in support were not complicated. It appears to have been a straightforward process. The award reflects the relative simplicity of the work done and the services and disbursements involved. 3 units for a total of $300 are assessed.
[14] Item 27: 2 units at $200 are asked for in respect of the preparation of a memorandum of fact and law. A claim for the preparation of this document is properly made as part of the work listed under tariff item 5. I agree with opposing counsel. It should not be included separately here and is not allowed.
[15] GST at $189 on assessed fees of $2700 is allowed. BLE's bill, presented at $5048.70, is assessed and allowed at $3443.78. A certificate will issue for this amount.
[16] The issue of setoff of costs under Rule 408(2) will be dealt with at the conclusion of these reasons.
[17] I now proceed to the two bills of costs of UTU and Cairns et al. which I have reproduced consecutively herein and have numbered 2 and 3 for further reference. It should be noted that at the time of the filing of these bills, the unit value of the tariff was $110 effective April 1, 2001. I have therefore changed the amounts claimed in each bill on the originals[1]. The bills were filed separately by the same counsel who represented UTU and Cairns et al. as distinct clients who were ultimately successful in the judicial review proceedings. On May 2, 2001, the Court (Strayer, Sexton, Sharlow, JJA.) pronounced final judgment on the judicial review applications, dismissing them with costs awarded to the Respondents and remitting the matter to the CIRB with directions. The fees listed and claimed in part A of each bill are identical. Disbursements claimed are different sums.
[18] # 2: Bill of Costs of the Respondent, United Transportation Union (UTU) as per the judgment of May 2, 2001
* See Assessor's notation in paragraph 17 of these reasons.
A. COUNSEL FEES
ITEM DESCRIPTION OF SERVICE COLUMN/UNITS AMOUNT
1 Preparation and filing of originating
documents III/5 $ 500.00
5 Preparation and filing of contested motion
including materials III/7 $ 700.00
6 Appearance at Motion (7 hours) III/3 $2,100.00
8 Preparation for an examination, including
examination for discovery on affidavits and
in aid of execution
(i) February 8, 2000 II/5 $ 500.00
(ii) February 22, 2000 II/5 $ 500.00
9 Attendance on examination, per hour (8 hours)
(i) February 8, 2000 III/3 $2,400.00
(ii) February 22, 2000 III/3 $2,400.00
13 Counsel Fee
(a) Preparation for Trial and Hearing III/5 $ 500.00
(b) Preparation for trial or hearing,
per day at Court until the trial day III/3 $ 300.00
14 Counsel Fee
(a) To first counsel, per hour in Court
(i) May 8, 2000 - 1 hour III/3 $ 300.00
(ii) March 21, 22, 2001 -14 hours III/3 $4,200.00
Sub-Total of Counsel Fees $14,400.00
Taxes on Fees (7%GST) $ 1,008.00
TOTAL COUNSEL FEES $15,408.00
B. DISBURSEMENTS
Quick law Search $ 319.26
Travel Expenses - Airfare $3,747.00
Travel Expenses - Hotel $1,034.19
Photocopying Charges $1,439.98
Long Distance Telephone $ 153.27
Interpretation/Translation Services $1520.62
Courier Charges $ 359.40
Facsimile Charges $ 144.82
Agency Legal Services $ 326.87
Sub-Total disbursements $9,045.41
Taxes on disbursements (7%GST) $ 633.17
TOTAL DISBURSEMENTS $9,678.58
TOTAL COUNSEL FEES AND DISBURSEMENT $25,086.58
[19] #3: Bill of Costs of the Respondent, George Cairns et al. re judgment of May 2, 2001
* See Assessor's notation in paragraph 17 of these reasons.
A. COUNSEL FEES
ITEM DESCRIPTION OF SERVICE COLUMN/UNITS AMOUNT
1 Preparation and filing of originating
documents III/5 $ 500.00
5 Preparation and filing of contested motion
including materials III/7 $ 700.00
6 Appearance at Motion (7 hours) III/3 $2,100.00
8 Preparation for an examination, including
examination for discovery on affidavits and
in aid of execution
(i) February 8, 2000 III/5 $ 500.00
(ii) February 22, 2000 III/5 $ 500.00
9 Attendance on examination, per hour (8 hours)
(i) February 8, 2000 III/3 $2,400.00
(ii) February 22, 2000 III/3 $2,400.00
13 Counsel Fee
(a) Preparation for Trial and Hearing III/5 $ 500.00
(b) Preparation for trial or hearing,
per day at Court until the trial day III/3 $ 300.00
14 Counsel Fee
(a) To first counsel, per hour in Court
(i) May 8, 2000 - 1 hour III/3 $ 300.00
(ii) March 21, 22, 2001 -14 hours III/3 $4,200.00
Sub-Total of Counsel Fees $14,400.00
Taxes on Fees (7%GST) $ 1,008.00
TOTAL COUNSEL FEES $15,408.00
B. DISBURSEMENTS
Travel Expenses - Airfare and Hotel (Feb. 7, 22, 2000) $1,500.00
Transcript and photocopying of Cross-Examination $2,400.00
Sub-Total disbursements $3,900.00
Taxes on Disbursements (7%GST) $ 273.00
TOTAL DISBURSEMENTS $4,373.00
TOTAL COUNSEL FEES AND DISBURSEMENTS $18,773.00
[20] In their representations in support, UTU and Cairns et al. submit that the amounts claimed in each bill were incurred and billed individually to their clients as sworn to in the two affidavits of Micheil Russell dated August 21, 2001. Counsel submit that the relief sought was the dismissal of the judicial review applications which in fact occurred. Counsel further state that the administrative law issues and the facts raised herein were important and complex and that their position in this regard is confirmed on the record by the Court in paragraph 1 of the Reasons for Judgment of Sexton, J.A. where he writes that these judicial review proceedings "... raise two important issues." The Honourable Mr. Justice Sexton then proceeded to identify and discuss these two issues.
[21] In rebuttal, counsel for BLE contend, inter alia, that the amounts claimed are excessive and unreasonable and that the issues in the substantive proceedings were not complex, but were more in the nature of a standard judicial review of a decision of an administrative tribunal. Counsel restates that the fees claimed in each bill are identical and that they are therefore entirely duplicative and inappropriate. It is further submitted that no amount should be assessed in favour of the Respondents in relation to a contested motion for a stay in which BLE and VIA were awarded costs and to a motion to intervene by the CIRB. In the alternative, BLE also submitted that the motion to intervene by the CIRB was an uncomplicated matter for which minimum costs should be assessed. BLE submits that an appropriate award would be a lump sum of $2500 for each respondent. In conclusion, counsel also ask for an adjustment by way of setoff pursuant to Rule 408(20).
[22] In their reply, counsel oppose the submission that the proceedings were in the nature of a standard judicial review and reiterate that the Reasons for Judgment of the Court in fact characterized the applications as having raised "two important issues". Counsel continue by asserting that complex and important issues were indeed raised and that the amounts claimed in consideration of the multiplicity of proceedings are not excessive nor unreasonable, nor are they duplicative or inappropriate. It is further submitted that counsel represented these parties throughout most of the proceedings, that their affidavit evidence confirms that the actual amounts billed to the clients were well in excess of the amounts claimed, that their substantial bills were paid independently by each party to their respective counsel for work done in the proceedings and, finally, that the work performed on behalf of each client was not "identical" as each party had its own perspective and concerns in relation to the issues being adjudicated. I will now proceed to the assessments.
Counsel Fees - Bills 2 and 3
[23] As the fees requested in each bill are identical, I shall deal with the items concurrently.
[24] Item 1: Counsel claim 5 units in each bill for the preparation and filing of originating documents. BLE and Via filed the originating documents on these judicial review files, not UTU or Cairns et al. Both claims are disallowed.
[25] Item 5: 7 units are claimed for preparation and filing of a contested motion, including supporting materials. The reference to fees for a "contested motion" is not clearly defined nor identified in counsel's supporting documents. It appears to relate to a motion for a stay filed on January 11, 2000 for a stay of the CIRB's order of October 22, 1999. The motion was filed by BLE and costs were awarded to them by the order dated January 17, 2000 to be paid jointly by UTU and Cairns et. al. As there is no entitlement, the claims are not allowed.
[26] Item 6: 7 hours for an amended total of $2310 are claimed for each client for an appearance at a motion. This claim is also disallowed for the reasons given above.
[27] Item 8: For preparation for an examination, including examination for discovery on affidavits and in aid of execution, counsel ask for the maximum sum allowable, $550 per day over a two day period for a total of $1100. The UTU bill shows a class 11 request here but in the Cairns bill a class 111 request. This clearly being a clerical error, I have amended it to be column 111 and will allow 2 units per day for a two day total of $440 in each account. Having considered the representations for and against by the parties, in my opinion, the work for which the two separate claims were made in each bill was co-mingled or distributed in some undefined proportion between these two parties, making it problematic for me to assess each as separate and distinct per party and per bill. If I did so, I would in effect double the amount allowed under tariff B in a party and party assessment where the principle of partial indemnification applies. This award reflects that reality.
[28] Item 9: For attendance at the discovery for two days, 3 units per day for two days are sought. I am satisfied that the unit claim is reasonable in the circumstances but have reduced the hours from 8 to 7 hours for a total of $2310 per day which, consistent with my views on a double claim for the same work and time discussed in the above paragraph, I have applied at the rate of $1155 per day per bill.
[29] Item 13: Fees for preparation for the hearing are submitted at 5 units under paragraph (a) and 3 units under paragraph (b) of this heading. The claims are reasonable and I have allowed them in full but have divided them equally between UTU and Cairns.
[30] Item 14: Counsel fees for 1 hour in Court on May 8, 2000 and again for the full hearing of the section 28 applications on March 21 and 22, 2001 are listed in each bill at $330 and at $4620 respectively. Both claims are reasonable and are allowed, split between the two bills.
[31] GST on assessed fees of $5665 is allowed at $396.55 for total assessed fees of $6061.55 in each bill.
Disbursements
[32] UTU claims disbursements totalling $9045.41 plus GST for a total of $9678.58. These charges are listed as Quick Law searches, travel expenses for air and hotel, fax and photocopying charges, long distance telephone charges, interpretation/translation services, courier charges and agency legal fees. BLE remained silent on these amounts, making no submissions. The supporting affidavit of August 21, 2001 states that these disbursements were indeed incurred and billed to UTU. In the absence of any opposing submissions by BLE and in the circumstances of this litigation, I find the costs claimed to be reasonable and allow them in full as claimed.
[33] UTU's bill, presented at $25086.58, is assessed and allowed at $15740.13.
[34] Cairns et al. list disbursements totalling $3900. They consist of air and hotel expenses for February 7 and 22, 2000 at $1500 transcript and copying fees in the amount of $2400 for a total of $3900. BLE did not specifically address nor contest the disbursements. I find them to be reasonable and they are allowed as claimed with the applicable GST.
[35] Cairns bill, presented at $18773, is assessed and allowed at $10434.55.
[36] Finally, Rule 408(2) allows an assessment officer to apply a set-off of costs where parties are liable to pay costs to each other. This is the case here and setoff has been requested.
[37] BLE's bill of costs was assessed at $3443.78. One half of this sum, $1721.89, will be applied to the amount owed against UTU's assessment ($15740.13 - $1721.89) which amounts to the sum of $14018.24. In the case of Cairns et al., BLE's sum is $8712.66 ($10434.55 - $1721.89).
Ottawa, Ontario, the 25th day of March 2002.
« Paul F. Scott »
Paul F. Scott
Assessment Officer
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-747-99 , A-749-99
STYLE OF CAUSE:
BETWEEN: A-747-99
International Brotherhood of Locomotive Engineers
Applicant
-and-
George Cairns et al., Via Rail Canada Inc. and United Transportation Union
Respondents
AND BETWEEN: A-749-99
Via Rail Canada Inc.
Applicant
-and-
George Cairns, International Brotherhood of Locomotive Engineers and
United Transportation Union
Respondent
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS BY: Paul F. Scott
DATED: March 25, 2002
APPEARANCES:
James L. Shields for the Applicant,
Scott W. Chamberlain International Brotherhood of Locomotive Engineers
Michael A. Church for the Respondents,
Micheil Russell United Transportation Union and George Cairns et al.
SOLICITORS OF RECORD:
Shields & Hunt, Ottawa for the Applicant
Caley & Wray, Toronto for the Respondents
[1] For purposes of clarity, I have left the figures on bills 2 and 3 as they were originally filed of record but have noted the reason for the change on each document.