Date: 20010705
Docket: A-327-99
Neutral citation:2001 FCA 233
BETWEEN:
CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Appellant
-and-
THE MINISTER OF THE ENVIRONMENT
Respondent
Assessment Officer
[1] This is an assessment of the Bill of Costs of the Respondent Minister relating to the above noted proceeding as well as the proceedings in court file numbers T-337-98 and A-446-99.
Background
[2] On March 2, 1998, the Canadian Environmental Law Association (Appellant) filed a Notice of Application for Judicial Review in the Trial Division of this court (T-337-98)
[3] The Judicial Review Application sought declaratory relief with regards to a decision by the Minister of the Environment relating to the Canada-Wide Accord on Environmental Harmonization.
[4] On April 27th 1999, the Trial Division (Reed J.) dismissed the Judicial Review Application and in its order awarded costs to the Respondent Minister.
[5] On the 30th of April 1999, counsel for the Canadian Environmental Law Association wrote to the Administrator of this Court seeking clarification of the Court's order of the 27th of April 1999. Specifically inquiring as to the origin of the costs portion of the order, since no submission as to costs had been made by either counsel on the hearing.
[6] By letter dated May 7th 1999, (copied to Respondent's counsel), the Registry advised counsel of the Court's directions resulting from counsel's inquiring of the 30th of April. Those directions read as follows:
"I consciously made the order of costs because counsel for the respondent had sought same in his written submissions, even though no oral submissions were made.
Prior to the recent changes in the Federal Court Rules, costs were not awarded in these cases. The Rules now provide, however, that they should be awarded.
I must admit that my preference was not to award costs against a public interest group in circumstances such as those existing in T-337-98, but I felt that with the change in the Rules I had to apply the usual rule and award costs to follow the event.
I am certainly willing to hear any representations counsel might wish to make, either on consent or otherwise, with respect to the awarding of costs or their level."
[7] By Notice of Appeal filed on May 27th 1999, the Appellant appealed the Trial Division order of the 27th of April 1999. (A-327-99)
[8] On June 9th 1999, counsel for the Appellant took advantage of the Court's invitation to make submissions on the issue of costs and filed written representations.
[9] On the 17th of June 1999, Respondent's counsel filed his written submissions regarding the issue of costs.
[10] Madam Justice Reed rendered the following order on the 2nd of July 1999:
For the reasons given by the respondent in the submissions filed on June 17, 1999, I agree that I do not have jurisdiction to set aside the order that was given with respect to costs. No submissions having been made with respect to quantum within the time limit for doing so, that also is not a matter that is now open for consideration.
[11] On July 22nd 1999, the Appellant appealed the July 2nd order (A-446-99).
[12] The Federal Court of Appeal heard the above mentioned appeals consecutively, on the 5th of June 2000 and dismissed both with costs.
[13] Before me, for assessment, is the Respondent's Bill of Costs relating to the two appeals and the Judicial Review proceeding in the Trial Division.
[14] Ms. Therese McClanaghan appeared on behalf of the Appellant and Ms. Sadian Campbell appeared on behalf of the Respondent Minister.
[15] At the commencement of the assessment, counsel both agreed that, notwithstanding one Bill of Costs had been submitted combining the costs in the proceedings, this assessment could still proceed at this time. Counsel for the Respondent undertook to provide a separate Bill of Costs in each of the proceedings.
[16] For practical reasons I propose to assess the items claimed, in the order they appear in the combined Bill of Costs.
Assessment
[17] A. Originating documents and other pleadings.
Item 2. Preparation and filing on all defences, replies, counterclaims etc. (T-337-98). Seven (7) units claimed.
[18] In support of the maximum number of units claimed on this item, counsel for the Respondent submitted that this was a complicated matter which required two volumes of material to be filed by the Applicant (Appellant). That an extensive amount of work was involved in reviewing that material which culminated in the preparation of two affidavits and a comprehensive Book of Authorities on behalf of the Respondent. Furthermore, given the National scope of the issue, this matter was "extremely complicated". She also referred to the Court of Appeal judgement and reasons, specifically to the court's statements with regards to unmeritorious proceedings launched by public interest groups not being immune from awards of costs.
[19] Counsel for the Appellant responded by submitting that the award of costs, in this case, was unusual. That neither counsel made submissions with regards to costs on the hearing of the Judicial Review Application. That in fact, no reference as to costs appear in the court's reasons.
[20] She further pointed out that the Trial Judge made it clear in her direction regarding costs, that her preference was not to award costs in cases of this nature. However, her ladyship did accept Respondent's argument that she was functus on the issue of costs. Ms. Mc Clenaghan went on to refer to Rule 400 (3) of the Federal Court Rules and advised that with regards to the factors set out under this rule, this proceeding is not one that seeks a financial claim. That while this was an extremely important issue, it was not a complex legal issue. That the whole proceeding only took two court appearances and all the evidence was contained in two affidavits. Further, that the two appeals were heard on the same day. Consequently, the issue did not have to be argued twice. That any interlocutory dispute between the parties prior to the substantive hearing were, for the most part, resolved in writing.
[21] Ms. Mc Clenaghan's position on the Court of Appeal's statement in it's reasons, that proceedings launched by public interest groups are not immune from award of costs, is that it should not be read in any context that influences the number of units to be awarded.
[22] She further argued that this is a case involving the public interest and the trial Judge, in her directions, stated that she would have preferred not to have awarded costs on this type of matter. It was Ms. Mc Clenaghan's position that item No. 2 should be assessed at 4 or 5 units.
[23] Respondent's counsel replied by stating that it took a lengthy amount of time to put the material together in response to the case. The issue had to be thoroughly canvassed. This thoroughness negated the necessity for cross-examination on the Appellant's affidavits.
[24] Ms. Campbell further argued that there must be some meaning to the Court of Appeal's use of the term "unmeritorious".
[25] I have considered both counsel's submissions as well as the factors set out under the provisions of the Rule 400 (3) and I am of the view that, with regards to this item, the issues between the parties are not unusually complex. Nevertheless, considerable work had to be performed by counsel for the Respondent to respond to the proceedings.
[26] I am also of the view that Madam Justice Reed's statement in her directions with regards to her preference not to award costs in cases of this nature, should not impact on the number of units to be awarded on this assessment. Similarly, I am also of the view that the reference by the Court of Appeal, in its Reasons to the term "unmeritorious" is obiter dictum and should not be construed as a direction to the assessment officer.
[27] The fact remains, that the order dated the 27th of April 1999 and the judgment dated the 5th of June 2000, provide for an award of costs to the Respondent.
[28] I have reviewed the Court files in these proceedings and have satisfied myself that no direction to the assessment officer exists.
[29] Having regard to the foregoing, I will allow (5) five units for item #2.
[30] B. Motions
Item #5 Preparation and filing of an uncontested motion including material and responses thereto (Respondent's motion record T-337-98 - Costs Motion).
[31] Counsel for the Appellant submitted that the resultant order from this motion was silent as to costs and thus costs cannot be allowed. Ms. Mc Clenaghan referred to the decision by assessment officer Lemay in Canadian Pacific Railways v. MLD Corp. Services 1998 FCT 1140.
[32] Counsel for the Respondent argues that this, in effect, was a reconsideration motion by the Appellant on this issue of costs. Respondent should be entitled to costs.
[33] Consistent with the decision in Canadian Pacific Railways v. MLD Corp. and my own decision in Suresh v. Minister of Citizenship and Immigration Court no. IMM-1390-96 as well as assessment officer Stinson's decision in Gemby v. Queen Court no. T-1238-98 wherein he states:
The orders for which item 4 and 5 are claimed were both silent on costs. The discretion described in Rule 400 (1) must be a visible allowance by way of an order or judgment. This being absent here, there is no fee entitlement for items 4 and 5.
Having regard to the foregoing Item five (5) will not be allowed.
[34] E. Trial or Hearing.
Item 14 (a) - To first counsel per hour in court (T-337-98) claim 5.5 hours for first day 5.5 hours for second day. 11 hours x 3 units for a total of 33 units. Item 14 (b) - to second counsel, where court directs, 50% of the amounts calculated under paragraph (a) 2 days/ 5.5 hours per day (T337-98) total 11 hours x 3 units divided by 2.
[35] Respondent's counsel submitted that lead counsel on these matters is a General Senior Counsel with the Department of Justice of many years experience and, having regard to his normal hourly rate, the number of units claimed under item 14 (a) is reasonable.
[36] Counsel for the Appellant argues that this is a party-party assessment and not a solicitor and client assessment. She submits that if her submissions with respect to the other factors were persuasive in allowing the lower range of units, then the same would apply under this item. She indicates that the number of hours are not in dispute.
[37] With regards to fees for second counsel item 14 (b), she refers to the wording in the tariff under this item and submits that this item contemplates a direction from the court in order for it to be claimed. No directions having been made, it is her position that this item should not be allowed.
[38] Respondent's counsel conceded that a direction with regards to fees for second counsel does not exist. However, it is her position that if fees for second counsel are not to be allowed, then the fees for first counsel under 14 (a) should be allowed as claimed.
[39] I will allow 2 units per hour under item 14 (a) for first counsel for a total of 22 units. (11 hours x 2 units)
[40] With regards to the claim under 14 (b) fees for second counsel, I am in agreement that a direction does not exist as required under this tariff item. Nor can I, as an assessment officer, usurp this court's authority and make such a direction. I am supported in this view by assessment officer Stinson in his reasons on the assessment of costs between Actra Fraternal Benefits Society v. Her Majesty the Queen. Court no. A-491-95, wherein at page 8 he states:
The term, "Court", in item 22 (b) does not include an assessment officer within the meaning of Rule 2 and 400 (1). I have no jurisdiction to usurp that authority and make the direction sought. I remove the $1,200.00 claimed in item 22 (b).
[41] The wording of tariff item 14 (b) and 22 (b) is identical and in my view the above reasoning applies equally to both. Consequently, I will remove the $1650.00 claimed under item 14 (b)
[42] F. Appeals to the Costs of Appeals
Item 19 Memorandum of Fact and Law (A-327-99)
6 units claimed.
[43] Appellant's counsel submits that the same submission relating to complexity apply to this item and that the fact that the matter only took half a day before the Federal Court of Appeal is indicative of the level of complexity. That this is very much a question of law and submits that 4 units be allowed on this item.
[44] Counsel for the Respondent argues that this was not a simplistic appeal. That after much work on the part of Respondent's counsel, "we were able to straighten out this mess". Thus the appeal may seem to be uncomplicated. The appeal hearing dealt with clear issues and the fact that the hearing only took half a day is attributable to the clear materials presented to the Court.
[45] I have had the opportunity to review the court files in these matters and I am of the view that the Respondent's memorandum of Fact and Law, which consist of approximately 28 pages, is not of extraordinary length. While the number of pages to a memorandum is not necessarily representative of the complexity of the issues, it is however, somewhat indicative of the effort exerted. I will allow 5 units for this item.
[46] Item 22 (a) to first counsel per hour (A-327-99) 10.5 units claimed. Respondent's counsel submits that the 10.5 units is based on 3.5 hours multiplied by 3 units. She further submits that her remarks with regards to item 14 (a) (T-337-98) apply equally to this item.
[47] Counsel for the Appellant argues that while the duration is not in dispute the number of units are. She suggests that since this is a party and party assessment the number of units should be allowed at 2.
[48] Consistent with my assessment regarding item 14 (a), I will allow 2 units per hour for a total of 7 units (3.5 x 2 units) for item 22 (a).
[49] Also consistent with my assessment of item 14 (b) I will not allow any units for item 22 (b).
[50] (ii A-446-99) Appeal of costs ordered on Judicial Review Application.
Item 19. Memorandum of Fact and Law 5 units claimed.
[51] Respondent's counsel explained that the reason for the lower number of units claimed on this item in comparison to those claimed for the same item in A-327-99, is that the issues in this appeal were less complicated and thus less onerous.
[52] Appellant's counsel argued that this was a procedural issue with regards to the appropriateness of the award of costs.
[53] Having considered the submissions of counsel, I will allow 4 units on item 19.
[54] The next item on the combined Bill of Costs relates to the preparation of a Memorandum of Fact and Law on court file A-781-98. I was advised by counsel that this item should not have been included on this Bill of Costs and need not be addressed on this assessment. This item will be struck from the Bill.
Disbursements
[55] The combined Bill of Costs breaks down the disbursements as follows:
Total Travel Expenses $4892.97
Total costs Servicing and Filing $358.45
Total costs of Photocopying $1315.71
Travel Expenses
[56] Respondent's counsel submitted that all the travel expenses set out in the Bill of Costs relate to travel to Ottawa for the purpose of meetings with clients and drafting material pertaining to these proceedings.
[57] Counsel for the Appellant took the position that, while there is no dispute between the parties that the monies was actually expended, there is however, an issue as to reasonableness. She reiterates that these are party and party costs. That it would seem extremely excessive for the Respondent to claim for all these face to face meetings when the Justice Department has qualified counsel both in Toronto and Ottawa. Furthermore, there is an issue with regards to the frequency of these meetings.
[58] Respondent's counsel argued that the first and second meeting had to do with the drafting and signing of the affidavit material. That there was a real need to have ongoing meetings with the client. This was not something that could have been handled through E-mail. That the Justice Department structure is such the Ontario Regional Office (Toronto) was assigned to this litigation since the Ottawa office (headquarters) handles mainly governmental policy matters. That the meetings were with officials of the Department of Environment and not with colleagues at the Department of Justice.
[59] Appellant counsel indicated that she was not disputing the fact that the meetings took place. She argues that this is a discretionary item on a party and party assessment and would remind the assessing officer of Madam Justice Reed's preference not to have awarded costs at all in this matter.
[60] With respect to the granting of this item being discretionary, counsel for the Respondent referred to the annotations cited under Rule 405 of the Federal Court Rules in the 2001 Federal Court Practice and suggested that the cases cited thereunder clearly demonstrate that it is proper to allow travel disbursements. She further argued that this was not the ordinary client, this client was dealing with intergovernmental accords. "Thus we had to meet with the Top Guys".
[61] With respect to travel expenses for second counsel, Appellant's counsel argued that since there was no order or direction by the court allowing fees for second counsel, travel expenses should not be allowed.
[62] Respondent's position with regards to travel expenses for second counsel, was that travel disbursements may still be allowed even when there is not a direction of the court allowing fees for travel time. She referred to the decision in Wilson v. Canada (2000), 2000 D.T.C 6267 (Federal Court Cases off.) Particularly to the annotation of the case found at page 786 of the 2001 Federal Court Practice .
[63] I have carefully considered counsels' arguments on this item and I am of the view that this is a proper case wherein travel disbursements for Senior General Counsel ought to be allowed. However, I have reviewed the affidavit of Wendy Szmik filed in support if this assessment, particularly exhibit "C" attached thereto. This exhibit purports to be a photocopy of the claim for reimbursement for travel expenses in the amount of $922.80 for Mr. Amerasinghe (Senior Counsel) for his trip to Ottawa on December 15 and 16 1998. I have noted in said exhibit that the amount of $922.80 includes amounts for car rental, gasoline and excess baggage totalling $167.64. I have found no evidence in the affidavit of Ms. Szmik to support the necessity for these charges and therefore I will reduce the amount of $922.80 by $167.64. Consequently, the travel disbursements as they relate to Mr. Amerasinghe's travel will be allowed at $3493.38.
[64] As to the $1231.94 disbursement for Ms. Sadian's travel (Second Counsel) I have reviewed the decision as cited by Ms. Sadian in Wilson v. Canada and I am of the view that the decision is distinguishable from this case since the reference to a direction in that case, is a reference to a direction under item 24 of the tariff and not items 14 (b) or 22 (b). This disbursement will not be allowed.
[65] With regards to the disbursement claimed for service and filing, both counsel indicated that there was no dispute on this item. I have satisfied myself that this disbursement is properly proven and will allow it in full.
[66] As to the disbursements for photocopying charges, it was the Appellant's position that these charges included charges for binding. She questioned the necessity and reasonableness.
[67] Respondent's position was that the bound documents were for the Court. However, the photocopy charge for the March 31 1998 affidavit of Michelle Swaranchuck was for internal use.
[68] The Szmik affidavit contains the invoices relating to the photocopy charges and I am satisfied that, with the exception of the March 31/98 invoice, all are properly proven and necessary and will be allowed at $1139.48.
[69] With regards to Appellant's counsel's comments as to the necessity of the binding, I am of the view that presenting documents to the Court that are properly bound and indexed goes a long way to making a judge's work a little easier. Most judges have to deal with a multiplicity of cases on a weekly or daily basis. Having a neat package of documents becomes, in my opinion, not just nice to have but a necessity.
[70] In summary the Respondent's combined Bill of Costs has been assessed and allowed as follows:
Fees
Item # #Units $
2 5 500.00
5 0 0
14(a) 22 2200.00
14(b) 0 0
19 5 500.00
22(a) 7 700.00
22(b) 0 0
19 4 400.00
Total Fees $ 4300.00
Disbursements
Travel Mr. Amerasinghe $3493.38
Travel Ms. Sadian $0
Service and Filing $358.45
Photocopies $1139.40
Total Disbursements $4991.31
Total fees and disbursements for all three proceedings $9291.31.
A certificate of assessment will issue in the this proceeding in the amount of $3788.16, as per the Respondent's Bill of Costs filed on June 21, 2001.
"Peter Pace"
P. Pace
Assessment Officer
Toronto, Ontario
July 5, 2001
FEDERAL COURT OF CANADA
FEDERAL COURT OF APPEAL
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
Docket: A-327-99
CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Appellant
- and -
THE MINISTER OF THE ENVIRONMENT
Respondent
DATE OF ASSESSMENT: April 26, 2001
PLACE OF ASSESSMENT: Toronto, Ontario
REASONS BY: P. Pace, Assessment Officer
DATE OF REASONS: July 5, 2001
APPEARANCES:
Therese McClanaghan for the Appellant
Sadian Campbell for the Respondent
SOLICITORS OF RECORD:
McCarthy Térault
Canadian Environmental Law Association
Barristers and Solicitors
Box 401-517 College St.
Toronto, Ontario
M6G 4A2 for the Appellant
Sadian Campbell
Department of Justice
Ontario Regional Office
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
for the Respondent
FEDERAL COURT OF CANADA
Date: 20010705
Docket: A-327-99
BETWEEN:
CANADIAN ENVIRONMENTAL LAW ASSOCIATION
Appellant
-and-
THE MINISTER OF THE ENVIRONMENT
Respondent
ASSESSMENT OF COSTS - REASONS