Date: 20020125
Docket: T-1303-01
Neutral Citation: 2002 FCT 95
BETWEEN:
DETMAR GARNET DESJARLAIS
Plaintiff
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA AND
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
AS REPRESENTED BY A COMMITTEE
OF THE HONOURABLE THE PRIVY COUNCIL
APPOINTED BY HIS EXCELLENCY
THE GOVERNOR GENERAL IN CANADA
THE 10th DAY OF FEBRUARY 1877, NOW BEING
HER MAJESTY THE QUEEN IN
THE RIGHT OF CANADA AS REPRESENTED BY
THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
Defendants
REASONS FOR ORDER
HARGRAVE P.
[1] In this action pleadings have not yet been closed. However the Plaintiff, who acts for himself, raises an interesting issue. He seeks an Order that the Defendant, the reference being to the Crown in this instance, bear all costs that have or will arise. Here the thrust is as to future costs, for this action is at a very early stage.
[2] The grounds for the motion for costs in advance are that not only has the Defendant wilfully altered the terms of Treaty Six of 1876, but also the Defendant has made no effort to resolve the Plaintiff's claim, a complex claim which includes the altering of the Treaty Six document and which seeks relief in the form of a dozen or so declarations and damages, including for fraud. On this basis the Plaintiff says that the Defendant ought to be responsible for all of the Plaintiff's expenses, in advance.
[3] I agree with Mr. Desjarlais that a party, who acts for himself or herself, cannot receive counsel's fees under the Federal Court Rules: see for example Levigne v. Canada (1998) 229 N.R. 205 at 206 (F.C.A.) , for barring some change in the Rules in favour of lay litigants, costs, which are the nature of fees to offset the charges of counsel, have always been reserved to instances in which counsel have appeared. This, of course, does not limit the right of a successful lay litigant to claim disbursements, including out of pocket expenses paid to legal counsel for advice and, perhaps, an allowance for some elements of the time spent in pursuing legal interests: see for example Canada v. Kahn (1999) 160 F.T.R. 83 at 89-90, a decision of Mr. Justice Teitelbaum. I now turn to the merits of the Plaintiff's motion.
[4] Costs are, for the most part, an allowance made to a successful party, recoverable from the losing party, either following a step in the proceeding or at the end of the proceeding. However, the Plaintiff, quite correctly, notes that costs are also at the discretion of the Court.
[5] Certainly the Court has full discretionary power to determine by whom costs are to be paid, with costs normally following the event. However, this discretion must be exercised in a judicial manner in accordance with established precedent and practice. Leaving aside, for the moment, the concept of security for costs, I know of no on point Federal Court authority to award a plaintiff a blank cheque, at the expense of the defendant, for costs in advance of any outcome. Moreover, the factors set out in Federal Court Rule 400(3), which are a guide to use in the exercise of setting costs, are retrospective in nature. However, this deserves further consideration.
[6] Counsel for the Defendant has referred to me to Westergard-Thorpe v. Canada (2000) 167 F.T.R. 101, in which Mr. Justice McKeown, without deciding the specific point, doubted that he had jurisdiction to make an award of costs in advance (page 104). That doubt was based upon an observation of the B.C. Court of Appeal in Woodward's Limited v. Montreal Trust Co. of Canada (1993) 73 B.C.L.R. (2d) 342, a court with inherent jurisdiction, that:
In the normal case the costs of both appellant and respondent are at risk until judgment is delivered. I am not persuaded that the parties here, whether appellant or respondent, should be treated any differently than any other litigator in this Court. That is to say, that if there is jurisdiction, about which I have expressed grave doubt, it must be a discretionary jurisdiction and I would not exercise the discretion in favour of the appellant. Costs will have to abide the result. (page 344)
[7] All of this overlooks Davies v. Eli Lilly & Co. [1987] 1 W.L.R. 1136, in which the Court of Appeal observed that there was nothing to prohibit the exercise of the discretion to award costs before the conclusion of proceedings.
[8] The Davies case dealt with English Order 62, Rule 3(3) which provides that if the court exercises its discretion to make an order as to the costs of any proceeding, costs are to follow the event, unless, in the circumstances of the case, some other order should be made. In Davies the trial judge had made an order, early in the proceedings, that one cause of action be split off for trial, in effect the test case or lead action, with the some 1,500 other plaintiffs to contribute to legal costs as the lead case proceeded. At issue was whether Order 62, Rule 3(3) prohibited the court from making an order in relation to costs not yet incurred. Each of the Court of Appeal justices wrote separate reasons, all in agreement, that there was nothing in the language of the Order and Rule which prohibited the exercise of the discretionary award in costs at an early stage where justice so required. Perhaps the most clear statement is that of Lord Justice Balcombe, at page 1146, where he observed that the Order and Rule were ". . . not concerned with the time when an order as to costs may be made, but only with the way in which the discretion should be exercised, . . . ".
[9] Our analogous rule, Federal Court Rule 400(1), provides that:
Discretionary powers of Court -- The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.
This Rule may be subjected to the same analysis as in the Davies case. It is a rule which provides for a discretionary power as to the amount of and the allocation of costs and the determination of who pays those costs. However Rule 400(1) does not prevent the Court from making an award of costs, in advance, in an appropriate situation. Certainly the factors set out in Rule 400(3), to consider in exercising the discretionary power are retrospective, yet a consideration of those factors is permissive. It may well be that the Federal Court, even though it is a statutory court, has an implied jurisdiction, as opposed to an inherent jurisdiction, where it is of necessity to make an early ruling as to costs, in the context of it being necessary in order to permit the Court to exercise its expressed jurisdiction. However, in the present instance, taking all of the circumstances into consideration, it is not necessary for me to decide the jurisdictional point in order to make a determination as to payment of costs in advance: such an order would be premature.
[10] Neither did Mr. Justice McKeown have to decided the point as to the Federal Court's jurisdiction to award costs in advance, but rather, at page 105 in Westergard-Thorpe, he exercised his discretion by refusing to make an award of costs, in advance, either conditionally or unconditionally.
[11] As I say, I have considered the position of Mr. Desjarlais. He makes some points, with which one can sympathize, including that the disbursements in this action, given his financial situation, will be difficult for him. Leaving aside the sympathetic reaction, Mr. Justice Addy makes the point, in Solosky v. The Queen [1977] 1 F.C. 663, that there should be no special treatment as to costs and that whether or not costs are awarded, there against an unsuccessful plaintiff, the ability to pay should not be a deciding factor, but rather one should look at the merits of the case itself, in effect, look at the outcome (see page 671). Mr. Desjarlais is also concerned about perceived delay. In my view there has been no undue delay in this proceeding. To the extent that there has been any delay, and I would stress that so far it has been minor, that has, at least in part, come about because Mr. Desjarlais, apparently now against his will, has been included as a defendant in a proceeding which seems to be a duplication of this action and thus the Plaintiff has arranged a date on which to apply for a stay of the present action and also a date on which to move to strike out this action, with, as I understand it, the alternative of particulars and an extension of time within which to file a defence. Moreover, there has been a minor communications problem with Mr. Desjarlais, which resulted in an earlier case management conference being postponed, until the Registry determined how to reach Mr. Desjarlais. These minor delays are perhaps unfortunate, but neither they nor Mr. Desjarlais's financial situation have any direct bearing, at law, upon an award of costs in advance. The Plaintiff also submits that he ought to have costs in advance by reason of the merit of his case. However, at this point, the Plaintiff has yet to prove his case and until that is done what is set out, in the Statement of Claim and in the Plaintiff's affidavit material, are merely allegations.
[12] As to security for costs, while such may be obtained by a plaintiff, as against a defendant, it is only in a situation where the defendant brings a claim by way of counterclaim, as set out in Rule 415.
[13] The motion for costs, in advance, in effect an indemnity for costs in advance, is premature and is dismissed.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
25 January 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1303-01
STYLE OF CAUSE: Detmar Garnet Desjarlais v.
Her Majesty the Queen in Right of Canada
and Others
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 25, 2002
REASONS FOR Order : John A. Hargrave, Prothonotary
DATED: January 25, 2002
APPEARANCES:
Garnet Desjarlais
Litigant in Person FOR PLAINTIFF
Leanne Young
Department of Justice FOR DEFENDANTS
SOLICITORS OF RECORD:
Litigant in Person FOR PLAINTIFF
Mr. /Morris Rosenberg FOR DEFENDANTS
Deputy Attorney General of Canada