Date: 20000630
Docket: A-549-98
BETWEEN:
MARILYN SHARP
Appellant
- and -
CANADIAN TRANSPORTATION AGENCY CANADIAN PACIFIC
RAILWAY COMPANY, UNION CARBIDE CANADA INC., LACOMBE
COUNTY, TOWN OF LACOMBE, ALBERTA WHEAT POOL,
PATRICIA AUSTIN, W. POHL, CHRIS STEVENS
Respondents
ASSESSMENT OF COSTS - REASONS
François Pilon,
Assessment Officer
This application for judicial review was dismissed with costs on June 11, 1999. Mr. Glen Poelman is acting on behalf of the respondent Canadian Pacific Railway (CPR). He filed a bill of costs with proof of service upon Mr. Darin Hannaford, the solicitor for the applicant. The latter filed written representations in response to the bill of costs on May 19, 2000 and Mr. Poelman replied on June 15. Counsel agreed to have costs assessed on the basis of the written material already submitted.
CONTESTED ITEMS AND ISSUES
[2] Are the provisions of Rule 400(2)(h) applicable?
The Rule reads as follows:
"whether the public interest in having the proceeding litigated justifies a particular award of costs."
Mr. Hannaford argues the respondent should not be allowed to claim the maximum units in every category of column III because, in this instance, the applicant was acting in the public interest in a matter that involved community, environmental and public safety concerns as evidenced by the number of supporters present at the appeal and the public attention the decision received in the media.
[3] Mr. Poelman replies that the applicant has taken full advantage of the litigation process as a named party to challenge a significant commercial undertaking of CPR and the applicant has assumed the risks which come with the legal process. He opposes the suggestion that the applicant should be relieved of those risks at the expense of CPR. Moreover, counsel submitted two cases showing that courts have awarded costs against applicants in public interest cases1.
[4] With respect, I need not refer to the jurisprudence to decide the issue. The Court, at page 9 of the Reasons for Judgment, has already settled it by interpreting section 98 of the Canada Transportation Act as follows:
"Nowhere in section 98 is there, express or implied, a public interest test..."
As a result the provisions of Rule 400 (2) (h) will not be relied upon to determine the number of units to be allowed in this bill of costs. However, I will rely on the factors at paragraph 3 (a), (c) and (g).
| [5] Item 16(a). Counsel fee for a motion for leave to appeal. |
Mr. Poelman requests7 units and his opponent responds with 4. Having examined the documentation on the preliminary Court file number 98-A-18 I believe 6 units are appropriate in the circumstances.
| [6] Item 19. Memorandum of fact and law. |
As with the previous item counsel have asked 7 and 4 units respectively. I think the award of 6 units is adequate indemnification.
[7] Item 21 (a). Counsel fee to prepare a motion to the Court.
Three (3) units are sought for the filing of a notice of motion requesting an expedited hearing. Mr. Hannaford disagrees completely because the request was not made by notice of motion, but by sending a letter to the Registry. Mr. Poelman"s reply is to the effect that parties have filed written submissions followed by Directions from the Court. The Court file indicates Directions were issued denying the request and these came down in the form of a memorandum from the Assistant Judicial Administrator. The Court did not issue a formal Order. In the absence of a notice of motion and of an Order granting costs of the said motion this item is not recoverable, the Court having full discretionary power over the allocation of costs (Rule 400 (1)).
[8] Item 22(a). Counsel fee on the hearing of the appeal.
The bill of costs specifies 5 hours in Court at the 3 unit level for a total of $1,500.00. In Mr. Hannaford"s view 2 units for a total of $1,000.00 would be fair compensation. In my opinion the importance of the issues raised by this statutory appeal justifies the allowance of 3 units.
| [9] Item 22 (b). Fees for second counsel. |
Respondent" counsel seeks the amount of $750.00 for the presence in Court of Mr. Paul Guthrie. Applicant's counsel opposes this item saying it is inappropriate because Mr. Guthrie was present as a representative of CPR and as a client it does not constitute or justify a second counsel appearance. Mr. Hannaford refers to the provisions of paragraph 22(b) of Tariff B which reads: "Counsel fee on hearing of the appeal ... to second counsel, where Court directs, 50% of the amount calculated under paragraph (a)".
[10] Mr. Poelman"s position is that part of Mr. Guthrie"s role as counsel for CPR is to represent it before tribunals and courts and furthermore the nature of the case and the serious interest of CPR in the matter merits a second counsel fee. In my opinion this issue is clear; in the absence of specific directions from the Court the item cannot be allowed by assessment officers.
| [11] Item 24. Counsel travelling to the hearing. |
The respondent is claiming 5 units to compensate counsel who travelled from Edmonton to Calgary to attend the hearing. This item cannot be allowed for the very same reasons expressed at item 22 (b) above. The words "where the Court directs" are operative here as well.
| [12] Item 26. Assessment of costs. |
Six (6) units are sought for the preparation of the bill of costs. Mr. Hannaford thinks it is unreasonable, that the calculations involved in preparing the bill of costs were relatively simple and he suggests allowing 2 units. On the other hand Mr. Poelman points out that this part of the proceeding is now contested and parties have submitted written representations. I will give credit to the arguments of both lawyers and allow 4 units.
| [13] Disbursements. |
The only item of disbursement objected to is the amount of $822.02 for computer assisted research which, in Mr. Hannaford"s opinion, appears to be outwardly excessive. The affidavit filed in support of the bill of costs makes no mention of this expense. However, several assessment officers have, during the past few years, allowed this particular disbursement because of the efficiency of computer research as a tool in the course of litigation. In the absence of evidence the amount claimed will be cut in half to $411.01.
[14] The other disbursements for photocopying , book binding, long distance charges, courier charges and air fare are not in dispute. They are either supported by affidavit or appear to have been reasonably incurred and are granted as asked.
| [15] The costs of the respondent are assessed and allowed in the amount of $3,200.00 for fees, $2,435.15 for disbursements and $394.46 for the Goods and Service Tax. A Certificate of Assessment will issue in the total amount of $6,029.61. |
Halifax, Nova Scotia, the 30th day of June 2000.
Francois Pilon François Pilon
Assessment Officer
FEDERAL COURT OF APPEAL
Docket A-549-98:
Marilyn Sharp
Applicant
- and -
Canadian Transportation Agency, Canadian Pacific
Railway Company, Union Carbide Canada Inc.,
Lacombe County, Town of Lacombe, Alberta Wheat
Pool, Patricia Austin, W. Pohl, Chris Stevens
Respondents
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
| REASONS BY: F. Pilon, Assessment Officer |
| DATE OF REASONS: June 30, 2000 |
APPEARANCES:
Darin Hannaford for the Applicant
Glen H. Poelman for the Respondent Canadian Pacific Railway Company
SOLICITORS OF RECORD:
Miller Thompson
Edmonton, Alberta for the Applicant
Macleod Dixon
Calgary, Alberta for the Respondent Canadian Pacific Railway Company
__________________
1"Canadian Parks et al. v. Banff National Park et al." (T-2505-93) a decision dated November 12, 1993 and " Friends of the Oldman River Society v. Alberta", a decision of the Alberta Court of Appeal dated April 4, 1996.