PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
and
TSUU T'INA FIRST NATION
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
TABLE OF CONTENTS
MOTIONS FOR COSTS 3
BACKGROUND 5
CONDUCT ISSUES 28
General 28
Officers of the Court 30
Conduct and Costs 36
AVAILABILITY OF COSTS TO THE INTERVENERS 40
THE FUNCTION AND PURPOSE OF COSTS 44
General 44
Indemnity and Beyond 46
Conclusions on General Principles 54
THE COST CLAIMS IN THIS CASE: COMMON ISSUES 55
Indemnity or Objective Assessment 55
Other Factors 62
(i) Duplication 63
(ii) Intervener and Crown Positions 68
(iii) Five Sets of Costs 70
(iv) Interlocutory Issue 72
(v) Collecting Costs For the Crown 74
(vi) NCC 74
(vii) Cross-Examination on Affidavits 76
(viii) The Court Reporter 78
(ix) Lawyers in Attendance at the Hearing 79
(x) The Offers to Settle 81
THE SEPARATE CLAIMS 82
NSIAA 82
NCC(A) 85
NWAC 90
NCC 91
REASONS FOR ORDER AND ORDER
[1] Each of the Interveners has brought a motion that asks the Court to fix costs for the reasonable apprehension of bias motion brought by the Plaintiffs and heard by the Court on March 29 to April 1, 2005 (Bias Motion).
[2] In Reasons for Order and Order dated May 3, 2005, I dismissed the Bias Motion as "groundless and unwarranted" and left the door open for the participants to address the Court on the issue of costs.
[3] The Plaintiffs and the Crown have reached an agreement on costs for the Bias Motion, but the Plaintiffs and the Interveners have not been able to do so; hence the need for the present motions.
[4] The Interveners' approach to costs is not uniform, but they each raise complex issues of process and conduct on the part of the Plaintiffs and their legal counsel during the Bias Motion that were referred to in my decision of May 3, 2005. This has made it appropriate to hear the motions at the same time and to deal with them together in a comprehensive set of reasons.
[5] NSIAA has asked the Court to fix costs for the Bias Motion on a solicitor and client basis, payable forthwith and in any event of the cause. In the alternative, NSIAA says it should at least receive a lump sum amount representing 1.5 times Column V of Tariff B, as well as disbursements, payable forthwith and in any event of the cause. NSIAA has also asked the Court to fix a lump sum amount of $1,500.00 for costs arising out of a separate motion brought by the Plaintiffs dealing with the will-say statements of the Crown and the Interveners and disposed of by the Court on November 18, 2005.
[6] NCC(A) has asked the Court to fix costs for the Bias Motion calculated at 1.5 times the upper end of Column V of Tariff B, payable forthwith and in any event of the cause.
[7] In a similar vein to NCC(A), NWAC has asked the Court to fix a lump sum award for its costs on the Bias Motion calculated at 1.5 times the high end of Column V of Tariff B (or, alternatively, calculated at Column V of Tariff B), payable forthwith and in any event of the cause.
[8] NCC, which participated to a lesser degree than the other Interveners in the Bias Motion, is asking for party and party costs assessed on the basis of Column III of Tariff B, and directing first counsel's travel and accommodation costs, all payable forthwith and in any event of the cause.
[9] The Plaintiffs agree that NSIAA, NCC(A) and NWAC are entitled to costs for the Bias Motion, but they dispute the amount and the basis for calculation. The Plaintiffs believe that NCC should receive no costs on the Bias Motion because NCC did not file a brief or make an oral presentation at the hearing of the Bias Motion. In the alternative, the Plaintiffs say that NCC should only be entitled to taxable costs "at the mid-range of Column I with no multiplier to be applied."
BACKGROUND
[10] Although they differ in their approach to the calculation of costs for the Bias Motion, the Interveners all raise important findings and directions of the Court that are set out in my May 3, 2005 decision as a justification for a higher award of costs than would normally be the case if indemnity, or partial indemnity, was the primary consideration.
[11] The Court's findings in the Bias Motion, the appeal from which was abandoned by the Plaintiffs, are of such importance for the grounds advanced in the present motions that some of the relevant paragraphs from my May 3, 2005 decision should be set out here to give the discussion a context:
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THE PRESENT IMPASSE
106. As the foregoing outline reveals, the present motion has been brought at a time when there is a significant disagreement between the Plaintiffs and the Crown over the scope of the pleadings and the relevance of an extensive body of evidence that the Plaintiffs propose to call at trial. This disagreement is inextricably connected with the will-say issue and the whole conduct of the trial.
107. This motion has been brought before the Court has had an opportunity to hear and adjudicate upon the issues raised in the Crown's pending motion concerning scope and relevance, and the will-says produced by the Plaintiffs.
108. There is no doubt that the Plaintiffs are aware of this because the record shows that Mr. Healey, counsel for the Plaintiffs, at the January 7, 2005 conference meeting confirmed with the Court his understanding that the Crown's motion would address the scope and relevance concerns of the Crown.
109. Notwithstanding the fact that the Court has not yet had the opportunity to examine and deal with these matters, the Plaintiffs have alleged apprehended bias, and have incorporated actual bias allegations into their materials for this motion.
110. The record shows that the Plaintiffs have consistently attempted to discourage the Court from hearing the Crown motion. As their proposal for a "workable solution" to their breach of the March 26, 2004 Pre-Trial Order shows, the Plaintiffs did not object to the will-say standards imposed by Russell J.. They said they could meet those standards and exceed them. What they objected to, and attempted to prevent, was a full consideration of the Crown's scope and relevancy concerns and a determination by the Court as to what the pleadings encompass in terms of self-government. Hence, it is worth considering at this stage whether the Crown's points about the scope of the pleadings and the self-government issue have any real substance, or whether the pending Crown motion is merely obstructive or frivolous.
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116. As the Court indicated in the reasons of Russell J. of November 25, 2004, the Court has no intention of deciding the issues raised in the Crown motion until it has heard full argument from counsel. However, as the above passages show, the dispute over scope and relevancy is not something the Court can merely ignore at this time on the grounds that the Crown has no real reason to raise such matters with the Court. The Crown's objections do not appear to be frivolous or obstructive.
117. In fact, the consequences of ignoring the dispute, and proceeding with the trial in the way the Plaintiffs would like to proceed, are enormous in terms of time and resources for all parties involved, as well as the Court.
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121. Also, in terms of context, and to place this motion in perspective, it is worth considering what the consequences would be if the Court were to grant the relief requested by the Plaintiffs.
122. At its narrowest, if Russell J. were to recuse himself, it would take the proceedings back to, at least, the Pre-Trial Order of Hugessen J. of March 26, 2004. That would mean that the parties would still have to face the scope and relevancy issues raised by the Crown, and the Plaintiffs would be free to argue anew such matters as amendments to pleadings, will-say statements and the role of Interveners at trial.
123. At its broadest, (the Plaintiffs allege a reasonable apprehension of bias on the part of Hugessen J. and the Federal Court) the relief could mean that these proceedings would revert to the status they had following the decision of the Federal Court of Appeal in 1997. In other words, everything would be wide open and the parties would have to begin again the tortuous path of confronting pleadings, evidence, discoveries, and, indeed, everything that has transpired since 1997.
124. These consequences should not matter if a reasonable apprehension of bias exists, but they do suggest that extreme caution should be used by the Court before committing all parties involved in this dispute to such a devastating result.
THE PLAINTIFFS' MATERIALS
125. The Court has serious concerns about the core materials compiled by Ms. Twinn and Mr. Healey, Plaintiffs' counsel, for this motion. The Court raised those concerns with Mr. Shibley, who argued the motion for the Plaintiffs at the hearing in Edmonton. The basic problem is that the Plaintiffs provide no objective, reliable evidence in their materials that the Court can use to assess the very serious accusations made in this motion. Their evidence, for the most, is little more than subjective opinion, often based upon false assumptions and inaccurate information about the state of the proceedings to date. It is self-referential. At bottom, it is nothing more than legal counsel arguing with the Court, and supplying opinion-based affidavits to back up that argument.
126. The Court has no real independent evidence it can rely upon, except what the Court can find for itself in the Court record.
127. The Court's unease was deepened when Ms. Eberts, counsel for the Native Women's Association of Canada, took the Court through the structural convolutions of the Plaintiffs' materials in considerable detail and pointed out the conflation of evidence and argument and the resulting confusion. The cross-referencing between affidavits, and between affidavits and the Memorandum of Argument and other materials, is such that it is difficult to tell who is opining to what and where evidence ends and argument begins.
128. These concerns are not merely of a technical nature. The core of the Plaintiffs' case is contained in the affidavits filed and in their written argument. Those materials were compiled by Ms. Twinn and Mr. Healey and those who they supervise.
129. Ms. Twinn is a member of one of the Plaintiff bands. She is the solicitor of record for these proceedings. She is a witness in this motion. And, she is one of the lawyers responsible for the written argument.
130. Mr. Healey is the lead counsel for the proceedings. He is the principal witness and architect of this motion. He, together with Ms. Twinn, has compiled the written argument that is before the Court. And Mr. Healey's conduct and the Court's response to that conduct constitutes a considerable aspect of what this whole motion is about.
131. When considering the consequences of granting the relief requested, these are matters that the Court cannot ignore as merely technical. There are reasons why lawyers should not both give evidence and provide argument based on that evidence, and the inevitable problems are more than apparent in the materials filed by the Plaintiffs in this motion: evidence and argument are merged; necessary context is left out; interpretations are skewed and highly subjective. Often, the evidence presented in this motion is little more than the subjective states of mind of Ms. Twinn and Mr. Healey. This is not a satisfactory basis for the Court to use when considering a motion for apprehended bias.
132. Nor are these concerns remedied by having Mr. Shibley conduct the oral argument at the hearing. Mr. Shibley graciously conceded that Ms. Twinn and Mr. Healey had compiled the written argument, that he does not have a knowledge of the full record, and that he was highly dependent upon Mr. Healey and Ms. Twinn for what he presented to the Court. Mr. Shibley adapted and endorsed their written argument (with several important exceptions which I will come to later), even though his oral argument was a masterful attempt to avoid its excesses and distortions. In effect, Ms. Twinn and Mr. Healey are the ones who have composed the argument and Mr. Shibley has tried to organize it better and to assist the Court in understanding its difficulties. Mr. Shibley has not reviewed the record afresh or presented his own objective appraisal to the Court. He has merely tried to make the argument of Mr. Healey and Ms. Twinn, which is backed by their own affidavits, more presentable.
133. When the Court put these concerns to Mr. Shibley, he advised that the important thing is the Court record, and that I should concentrate on that. While I agree with him that the Court must examine the Court's decisions and transcripts carefully, I do not think the problem ends there.
134. The onus is on the Plaintiffs to prove a reasonable apprehension of bias before the Court. A significant part of the Plaintiffs' argument/evidence is a highly subjective, selective interpretation on the part of Ms. Twinn and Mr. Healey, who are wearing far too many hats in this motion for the Court's comfort. What is more, even the lay witnesses brought forward by the Plaintiffs are totally dependent upon Ms. Twinn and Mr. Healey for their interpretations of the effects of Court orders and Court actions, and have signed affidavits that were prepared for them by Mr. Healey and/or Ms. Twinn and/or someone working under their direction.
135. Mr. Shibley has cautioned the Court against relying upon "technical" matters, rather than addressing the real issues in dispute in this motion. In my view, however, reliable evidence and objective argument are not merely technical matters. They are the very life blood of the Court, and the only basis upon which it can make decisions.
136. The fact is that, in accordance with Rule 82, of the Federal Court Rules, 1998 a solicitor cannot, except with leave of the Court, both depose to an affidavit and present argument to the Court based on that affidavit. It is true that Mr. Shibley appeared to argue the case at the hearing, but in so doing he told the Court he was merely presenting the arguments of Ms. Twinn and Mr. Healey modified by his own style of presentation. He also adopted the Memorandum of Argument that was prepared by Ms. Twinn and Mr. Healey. In essence then, Ms. Twinn and Mr. Healey have provided argument for this motion based upon their own affidavits or upon affidavits of others that they prepared and that are almost totally about what Ms. Twinn and Mr. Healey have advised the affiants. In the present case, the Court's consent has never even been sought, let alone granted for what has been filed. I have in the past made it very clear to counsel for the Plaintiffs - indeed to all parties to these proceedings - that practises and procedures that do not accord with the Federal Court Rules, 1998 are not acceptable. In the Plaintiffs' motion to amend pleadings that came before me in June, 2004, Plaintiffs' counsel submitted an affidavit sworn by counsel, despite Hugessen J. having criticized such practice in the past. In my reasons of June 29, 2004, dealing with the proposed amendments, I gave the following direction at paragraphs 22 and 23:
The Band has sought leave of the Court to file its solicitor's affidavit. However, as the responses of both the Crown and NSIAA make abundantly clear, some of the Band's proposed amendments are highly contentious and, looked at objectively, I think Band counsel should have appreciated this.
In view of the history of this file, and the long road that lies ahead, I think it is best to make it clear to all parties that practices and procedures that do not accord with the Federal Court Rules, 1998 are not acceptable. Consequently, the affidavit of Counsel for the Band, in so far as it strays beyond mere housekeeping and non-contentious issues, is not acceptable and cannot be relied upon in the Band Motion.
137. Consequently, I do not think the Plaintiffs can be too surprised by the Court's remaining consistent with this warning and refusing to accept the affidavits of Ms. Twinn and Mr. Healey and those portions of the written argument adopted as evidence and incorporated into their affidavits. The matters before the Court in the present motion are highly contentious and the affidavits of Ms. Twinn and Mr. Healey contain a great deal that is merely their own feelings and states of mind on conduct and procedural issues that involve them in a highly personal way. In my view, this is not an acceptable evidentiary base for a motion that seeks to show bias (apprehended or otherwise) on the part of specific judges and, possibly, the Federal Court. At the very least, the Court would have to say that this evidence must be treated as highly suspect and afforded little weight, even when the oral argument is made by Mr. Shibley.
138. There is an irony in this problem that places the Court in a very difficult situation. This is a motion in which one of the allegations against the trial judge is that Russell J. has applied double standards in relation to materials produced by the Plaintiffs and materials produced by the Crown and the Interveners. The allegation is that Russell J. has favoured the Crown and the Interveners in this regard. However, in a motion where the effect of granting the full relief requested would be simply devastating on the rights of other parties, and upon the difficult work accomplished by all parties to date, the Court is somehow supposed to overlook the evidentiary and procedural problems inherent in the Plaintiffs' materials and decide the issue by some other means.
139. Of course, the Court cannot do that. The Court is impartial. It cannot just step in and rectify shortcomings in the Plaintiffs' presentation and conduct of this motion. It is the Plaintiffs' responsibility to prove a reasonable apprehension of bias, and it is the Plaintiffs' responsibility to provide the Court with the materials it needs to assess the extremely serious allegation they make in this motion.
140. If the Court had ever suspended rules of evidence and procedure in favour of the Crown and the Interveners in a matter as important as the present motion, I have no doubt it would have been cited by the Plaintiffs as a clear instance of apprehended bias on the part of the Court.
141. In my view then, the Court must regard the affidavits of Ms. Twinn and Mr. Healey and the evidence they incorporate from their Memorandum of Argument as inadmissible. In addition, to the extent that the lay witnesses merely recount opinions and facts provided to them by Ms. Twinn and Mr. Healey, their evidence is hearsay and opinion and inadmissible for that reason.
142. However, even though the Court is obliged to point out these problems and to reach such a conclusion, no one (and I feel confident including the Crown and the Interveners in what I say) wants this motion to be dismissed upon the basis of evidentiary and procedural issues alone. If the Court did this, the proceedings would continue to stagnate and the likelihood of progressing towards trial any time soon would significantly diminish. I believe that all parties are of the view that some kind of clearing of the air is required at this time.
143. Hence, it is my intention to try and address Mr. Shibley's oral arguments, and the written arguments of Ms. Twinn and Mr. Healey as contained in the Plaintiffs' Memorandum of Argument, by direct reference to the Court record, bearing in mind, however, that those arguments are highly tainted by the problems I have referred to above. But what the Court is really doing here, in effect, is proceeding with its own examination of the record in the light of the Plaintiffs' professed concerns. The Court cannot say that the Plaintiffs have discharged the onus upon them that the law demands in a motion of this nature, and proceeding further with these reasons should not be taken as any indication that the Court accepts the written materials filed, or has chosen to overlook the evidentiary difficulties referred to above.
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THE LAW
156. But I would also like to emphasize and expand upon two points that Ms. Eberts identifies in her written brief. First of all, I believe our legal system depends upon the assumption that judges must be presumed to be impartial. This does not mean that counsel should be intimidated or chary of challenging decisions or judicial conduct where the circumstances warrant it. Our system presumes judges to be impartial, but it also depends upon forthright and intrepid counsel to raise the alarm when they think an apprehension of unfairness has entered the process. Much depends upon the sound judgment and good faith of counsel. There are checks and balances that should ensure applications are only brought in appropriate circumstances. However, if the Court feels the allegations are not appropriate, it must be equally forthright in identifying what it sees as any abuse, bad faith, or irresponsibility on the part of counsel. The respective duties of judge and counsel demand plain speaking on what can be somewhat delicate issues. But, in my view, the fairness and integrity of our judicial system demands that appearance of bias applications not be handled with coyness. They strike at the heart of the administration of justice and undermine public confidence in the impartiality and integrity of the judiciary. Allegations are easy to make and difficult to repel. They must be dealt with openly and firmly.
157. Secondly, I do not believe it can be emphasized too much that the inquiry to which a reasonable apprehension of bias allegation gives rise must be highly fact-specific. The complete context of each situation, and the particular circumstances are of the utmost importance. This is why, in my view, the Court must be wary of taking a result in one case and assuming, because it might seem to address a particular point, that it can be useful in dealing with an entire application: facts are infinitely variable; the mix needs to be reviewed carefully; and the record must be considered in its entirely to determine the cumulative effect of any alleged transgression or impropriety.
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THE PLAINTIFFS= ORAL ARGUMENT
160. The Plaintiffs= oral argument was very different in tone and emphasis from the Plaintiffs= written argument. Mr. Shibley was most helpful to the Court because he brought a fresh appraisal to the present impasse and he made a strenuous effort to distill the essence of the Plaintiffs= concerns and to extrapolate them from the convoluted excesses of their written materials.
161. However, notwithstanding these attempts at clarification, there were several ways in which the oral argument mimicked the approach apparent in the Plaintiffs= written brief: it did not review the whole context or the complete record, and it made highly selective and partial use of some items in the record, while neglecting to mention other material facts entirely. This was because, in the end, the oral argument was completely dependant upon the written argument for its authority and points of reference.
162. In an application where context is everything, such an approach is of limited use to the Court. As I mentioned earlier, Mr. Shibley was exemplary in his forthright disclosure that he did not know the whole record and was dependent upon Ms. Twinn and Mr. Healey to guide him.
163. The onus is on the Plaintiffs to prove a reasonable apprehension of bias. If they choose not to deal with the whole context, then they will have a very difficult time convincing the Court that they have satisfied the jurisprudence and met the reasonable person test.
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THE REPRIMAND
471. I have agreed with Mr. Shibley that this motion is not the place to address the complaints of opposing counsel directed at Mr. Healey and, for this reason, I wish to make what I have to say as neutral as possible. However, the conduct of Plaintiffs= counsel has been put in issue by the Plaintiffs and the Court must address it to the extent that it relates to the reasonable apprehension of bias motion that has been placed before the Court and to the extent that it impacts upon the integrity of these proceedings.
472. Mr. Shibley makes two important points that the Court should address. One of them is what he terms the Aone-sided problem.@ Once again, he is neglecting the full record. The Court=s general directions upon conduct have been directed at all counsel. Even in the Court=s December 6, 2004 reasons, at paragraph 68, the Court=s comments are directed at Aall counsel.@
473. But this does not mean that all counsel have engaged in unacceptable conduct. The record shows where individual counsel have transgressed and, in any future context where conduct may become an issue, it should be the full record that is looked at, and not anything that was said as part of the hearing for this motion where all involved behaved impeccably.
474. In the December 6, 2004 reasons, Mr. Healey is singled out for observation because the Court felt that, on that occasion, his conduct was not acceptable. The Court had no problem with the conduct of opposing counsel because, although they took strong issue with what Mr. Healey said, they remained professional and did not allow their feelings to disrupt the process or to deteriorate into a personal attack upon Mr. Healey before the Court.
475. The second important issue is Mr. Shibley=s assertion that the Aevidentiary base ... does not appear to have been fully addressed.@
476. Paragraph 35 of the reasons of December 6, 2004 makes it clear that the reason why the Court felt it necessary to reprimand Mr. Healey was because the Aprogress of the dispute was impeded, and valuable Court time was wasted, in addressing matters that, on examination, are clearly res judicata.@
477. The Court felt it had been misled on one of the principle issues in the motion: res judicata. By alleging that the Interveners were misleading the Court on this issue, the Court allowed argument from Plaintiffs= counsel that should not have been allowed because the issues had Aalready been argued ad nauseam before the Court,@ and were matters upon which the Court Aand the Federal Court of Appeal@ had already ruled.
478. So this aspect of the reprimand was that the Court did not appreciate having to listen to arguments on matters that were res judicata. The evidentiary base for this conclusion is set out in the reasons and the materials submitted by counsel who participated in that motion.
479. The second aspect of the reprimand was disapproval of Mr. Healey=s ad hominem attacks upon opposing counsel. In other words, he made it too personal.
480. Throughout the hearing on November 18 and 19, 2004, and not just in relation to one contentious matter, Mr. Healey made extensive use of words such as Amisrepresentation,@ Amischief,@ Athey will say anything,@ Amislead,@ Acomplete misstatement,@ Atrickery,@ Amost ridiculous position,@ Afalse,@ and Athat=s just made up.@ Russell J. did not in the reasons address every instance where such words were used. But the evidentiary base for the reprimand was everything heard by the Court, and that appears in the transcript. The overall impression conveyed by Mr. Healey was that the Interveners were dishonest and that they were out to trick the Court on issues concerning their role and standing in these proceedings. And, after I had heard argument, I agreed with the Interveners that the issue of their role had been dealt with to a considerable extent in previous Court orders and did not need to be argued all over again.
481. Russell J. did not detect or record a similar animus on the part of the Interveners when they were dealing with Mr. Healey=s arguments, even though he was re-arguing matters that were res judicata.
482. It has to be kept in mind that, in paragraphs 34 and 35 of the reasons, the Court is focused upon the issue of res judicata. As the reasons also make clear, Mr. Healey argued that the Federal Court of Appeal had directed certain things which Russell J. found that Court had not directed. The Plaintiffs cited the Federal Court of Appeal out of context, and then claimed that the Federal Court was being misled by the Interveners and that they were creating mischief.
483. So the evidentiary base for the Court=s remarks can be found in previous decisions of the Federal Court and the Federal Court of Appeal as referred to in the reasons. The Court indicates in paragraph 34, that it examined the allegations that Mr. Healey made (including those against Mr. Donaldson and Mr. Faulds) and the Court did not find that the Interveners were creating mischief or deliberately misleading the Court. If Mr. Healey has a problem with that finding he can take it up with the Federal Court of Appeal. Differences of interpretation do not require an all-out attack on the honesty of opposing counsel. That is what warranted the reprimand. Counsel can be wrong (and I=m not saying they were in this case) without being dishonest, and I have noticed in Mr. Healey=s cross-examination for this motion, when Mr. Kindrake took him through a number of inaccurate statements he has made to the Court, he was very forgiving of himself. Those inaccuracies were merely Amistakes.@
484. I believe the reasonable person would see the reprimand as an attempt to maintain courtroom decorum in a situation where disagreement between counsel resulted in one counsel resorting to ad hominem attacks in order to distract the Court from the basic issue of whether the role of the Interveners was or was not a matter of res judicata. As the reasons make clear, the full evidentiary base was examined. The response was measured and appropriate and I do not believe that the reasonable person, fully informed, would reasonably apprehend bias against Mr. Healey or the Plaintiffs.
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THE PLAINTIFFS= WRITTEN ARGUMENT
496. Following his oral presentation, Mr. Shibley adopted and endorsed the Plaintiffs= written argument with the exception of two important allegations which I will come to shortly.
497. The Plaintiffs= written argument was not prepared by Mr. Shibley and it is the Court=s understanding that he had very little input, if any, in putting it together. The written argument is signed by Ms. Twinn and Mr. Healey, and Mr. Healey has indicated in cross-examination that he and Ms. Twinn (together with those they supervise) are responsible for it. Mr. Healey is primarily responsible.
498. The two allegations that were withdrawn are important. The first one is contained in paragraph (a) (xv) of the Notice of Motion and 5(j) of the Plaintiffs= Memorandum of Argument to the effect that Russell J. engaged in private conversations with the Crown to thwart the Plaintiffs= plans to call their evidence on self-government.
499. There are clear indications here of a deep-seated hostility towards the Court and its processes. Until the day of the hearing, Plaintiffs= counsel continued to allege that Russell J. Aengaged in private conversations with the Crown to schedule a summary motion filed by the Crown designed to defeat the central allegation raised by the Plaintiffs in this proceeding, namely the Plaintiffs= right of self-government ... . It was only through the inadvertence of the Crown that the Plaintiffs became aware of these conversations ... . Russell J. did not inform the Plaintiffs at the time or shortly after these discussions occurred that there were such discussions or what was discussed... . Russell J. only responded when the Plaintiffs raised it with him one week later.@
500. This sounds, and is meant to sound, absolutely appalling. It conjures up images of Russell J. picking up the phone and plotting with Mr. Kimmis to thwart the Plaintiffs= alleged claim to self-government.
501. What really happened was that a filing date for Crown materials fell on a Saturday and the Crown contacted the Court registry to find out what it should do. The registry applied the usual rule in these situations of allowing filing on the next business day. The registry checked with Russell J. to ensure that there was no problem in following the normal procedure in this instance. And thus, says Plaintiffs= counsel, Russell J. Aengaged in private conversations with the Crown ... .@
502. The Plaintiffs had to know immediately that they received materials on Monday and not Saturday, and as soon as Russell J. became aware that Plaintiffs= counsel was concerned, a full written explanation was provided forthwith. Yet the allegation was still made. What is more, it was sworn to under oath by counsel for the Plaintiffs.
503. What we see happening here is Mr. Healey and Ms. Twinn abandoning all proportion and objectivity to mount a personal attack on the integrity of the trial judge, although I am not clear from the evidence of the extent to which Ms. Twinn is a participant in this approach.
504. Fortunately, a wiser head prevailed and Mr. Shibley withdrew the allegation at the hearing. But the fact that it was made at all under the circumstances would not be lost on the reasonable person.
505. The fact that it appeared in the Notice of Motion and the Memorandum of Argument, after full explanation was promptly provided, highlights the significant difficulties the Plaintiffs= written materials present for the Court and why argument (written or otherwise) should not be made by someone who, in the case of Ms. Twinn, is a band member, solicitor of record and witness, and, in the case of Mr. Healey, is leading counsel, witness and personally involved with many of the issues raised.
506. The second important item that was withdrawn is even more problematic for the Court. At the end of his presentation, and after he had endorsed and adopted the Plaintiffs= written argument, the Court drew Mr. Shibley=s attention to paragraph 3 and the following sentence:
They (i.e. the Plaintiffs) do not seek a determination of actual bias. There is however some evidence to support such a finding.
507. The Court is never told what this evidence of actual bias is, although there are allegations throughout of actual bias rather than apprehended bias. But Mr. Shibley assured the Court that this motion was based upon apprehended bias.
508. An allegation of actual bias without evidence is nothing more than a slur. And an allegation of actual bias in a motion that claims to be about apprehended bias is irrelevant and, therefore, a gratuitous slur.
509. To his credit, Mr. Shibley withdrew the allegation in paragraph 3 as soon as the Court brought it to his attention and I do not for one moment entertain the thought that, in endorsing the Plaintiffs= written argument, he meant to endorse that allegation.
510. I also agree with Mr. Shibley that complaints by the Crown and/or the Interveners related to the conduct of Plaintiffs= counsel should not be dealt with as part of this motion except, of course, where Plaintiffs= counsel=s conduct is specifically raised by the Plaintiffs and the Court is, therefore, obliged to deal with it, and where the materials themselves bring up conduct issues that the Court cannot ignore.
511. However, notwithstanding its withdrawal at the hearing, the inclusion of an allegation of actual bias raises the same general concern that the Court has already expressed about the materials having been prepared by counsel for the Plaintiffs who have abandoned objectivity and any sense of proportion in what they are prepared to say. And the allegations of actual bias are so ingrained and interwoven throughout the Memorandum of Argument and the evidence of Mr. Healey that removing a sentence from paragraph 3 does not solve the problem.
512. The Plaintiffs= Memorandum of Argument presents a litany of allegations that goes on for almost 100 pages. It is not easy to decipher and no assistance was offered to the Court at the hearing by the Plaintiffs that would help in the process. The Court is merely left to make what it can of decontextualized quotations and accusations, highly subjective and skewed interpretations, attempts to re-argue untenable positions, and a great deal of what can only be called innuendo.
513. The net effect of this approach is to force upon the Court and the other parties the job of providing the full context needed to place the Plaintiffs= arguments in a perspective that will enable the reasonable person to assess them. The Court has to keep in mind that the onus is on the Plaintiffs to prove a reasonable apprehension bias, and it is not the role of the Court and/or the other parties to try and make clear what is obscured by the Plaintiffs= materials. But allegations of bias (actual or apprehended) are very easy to make and very difficult to dispel. They strike at the heart of our justice system and they undermine public confidence in the integrity of the judiciary. This is why they should not be made in an irresponsible way and before an objective appraisal is made of the record, the materials and the position of counsel who is making them. If undertaken irresponsibly they create alienation and estrangement from the whole justice system.
514. The Plaintiffs were given a significant amount of time to prepare this motion and their materials. Extensions were granted when requested. All other pending matters were suspended so that they could concentrate on the task in hand. And Mr. Donaldson, who represents NSIAA, one of the Interveners, even went so far as to assist the Plaintiffs and the Court in preparing and organizing two volumes of Transcripts, Pre-Trial Orders and Directions that are essential for an understanding of the full context of this motion. Notwithstanding all of this accommodation, the end result is confused and, at times, just plain baffling.
515. The first problem for the Court is to determine what the Plaintiffs= Memorandum of Argument actually is and how it can be used. In their affidavits, Ms. Twinn and Mr. Healey adopt the document, or at least parts of it, as evidence. Mr. Shibley could not really help the Court much with this problem:
In any event, it=s not a factum, in my view, in the normal sense of that term; its written argument, which I found to be helpful, and I hope you do too. It=s comprehensive beyond what is normal. There is no question about that.(Transcript, vol. 2, page 28: 8 - 13)
516. So the Court is left to make of this Awritten argument@ what it can. However, the Court was very unnerved by the following information from Mr. Shibley:
Well, I=ve read it more than once; I=ve read it a number of times. And I say with respect, I, submit to you, My Lord, that it=s very worthy of reading. It is elaborate. And sometimes the reproduction of transcript is elaborate. I found it useful because I didn=t have to read the transcript, get the volumes out. [Emphasis added](Transcript, vol. 2, page 32: 3 - 10)
517. The Court can only say that it gains little comfort from the knowledge that Mr. Shibley did not have to read the transcript because, had he done so, he might have alerted himself to the fact that the allegations and assertions contained in the Memorandum of Argument are difficult to reconcile with the actual record.
518. In his summary, Mr. Shibley advised the Court that Athe record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties.@ Having now spent weeks doing just that, I am left wishing heartily that the Plaintiffs had followed their own advice.
¼
556. Mr. Shibley has asked that opposing counsels= criticism of Mr. Healey=s conduct in these proceedings not be made the focus of this motion, and I have agreed with him in a general sense. But to totally neglect Mr. Healey=s conduct would be to neglect a fundamental part of his own argument, because he squarely places his conduct before the Court and invites the Court to address it as part of the apprehended bias allegations. He also reveals quite clearly in paragraph 20 quoted above that there is a significant personal dimension to this motion, and I will address the implications of that later.
¼
559. So, apart from the specific allegations against Justices Hugessen and Russell, what have the Plaintiffs provided to the Court for consideration from the perspective of the reasonable person? They have presented elliptical quotations taken out of context, skewed interpretations, much that is simply irrelevant, quotations that do not stand for what the Plaintiffs say they stand for, hearsay and innuendo.
560. There is nothing here that a reasonable person would consider as giving rise to a reasonable apprehension of bias within the Federal Court. As for the Plaintiffs= apprehensions about receiving an unbiased hearing in the Federal Court and what I surmise to be a suggestion of Aestrangement@ from the processes of this Court, my view is that the arguments put forward in the written brief do not assist in alleviating that feeling. In fact, quite the reverse; they appear to me to build and exacerbate alienation and estrangement.
561. Against all of this, however, there is, in fact, a clear message in the materials about what the Plaintiffs= real apprehensions are concerning the Federal Court. With exemplary candour, Chief Roland Twinn, during cross-examination on his affidavit for this motion, came directly to the point:
Q. Okay. Now one of the other pieces of relief that=s asked for here in this case is that the possibility that the matter could be transferred to B in your Affidavit, paragraph 4, it says: the Provincial Court. So which Court is that?
A. The Court of Queen=s Bench.
Q. Any do you have any specific judge in mind in the Court of Queen=s Bench?
A. No, I do not.
Q. Can you tell me why you say the Court of Queen=s Bench might be more inclined to be fair to your case than the Federal Court?
A. It is my belief that the Provincial Court has had some more favourable rulings towards First Nations.
(Roland Twinn cross-examination, page 11: 10 - 23)
562. Chief Twinn cannot be faulted for wanting a judge who will see matters as he sees them and give him the relief he wants. That is his job and it is what all plaintiffs want. But a judge who does not see things the Plaintiffs= way, on some particular procedural decision such as has occurred in this case, does not, for that reason, create a reasonable apprehension of bias, and decisions against the Plaintiffs on procedural matters do not, per se, give rise to a reasonable apprehension of bias. By asking the Court for a say in picking the judge who will hear this case (even as modified at the hearing to a request that I recommend to the Chief Justice of the Federal Court that they have a say), the Plaintiffs are clearly concerned to find someone who will be more disposed to their case than they believe Russell J. to be. The problem with this is that the Federal Court of Appeal, who the Plaintiffs appear to trust, has said in Samson that it cannot be:
In our view, what the Appellants seek in these appeals is the removal of Teitlebaum J. as trial judge and his replacement by a judge of their own preference to preside over what are admittedly two important trials. This approach to the selection of a trial judge is foreign to the practice of this Court. We do not wish to encourage it in any way.
¼
577. The remaining 65 pages of the Plaintiffs= Memorandum of Argument are a, sometimes vitriolic, attack upon the role played by Russell J. since his appointment as trial judge in 2004.
578. Much of it is an attempt to drag the Court back over old arguments that the Court has rejected in its decisions: the implication being that the Court got it so wrong that any reasonable person would apprehend bias.
579. Quotations are taken out of context and/or most of the context that a reasonable person would need to judge the allegations is just not provided. Elliptical quotations are occasionally used. Unsupported assertions are made that are just plain wrong. Plaintiffs= counsel have culled the whole record for words and passages that can be assembled into a revisionist collage of what has transpired.
580. Any attempt to cite in full relevant portions of the record to provide the complete context for the positions put forward by the Plaintiffs would require a gargantuan effort on the part of the Court. In a motion for apprehended bias, where context is everything, Plaintiffs= counsel have gone out of their way to provide a very unbalanced account of what has taken place. As I mentioned earlier, this seems to be the inevitable consequence of counsel wearing so many hats at the same time. Objectivity and a sense of proportion are lost.
581. On the other hand, the allegations made are so serious (some of them amounting to actual bias) that the Court is compelled to make some effort to come to terms with this material, lest it be thought that silence is concurrence and the Plaintiffs= people are left with the impression that the Court just doesn=t care about such matters and they lose their confidence in the integrity of the proceedings.
¼
593. It is just not possible for the Court to address separately in these reasons every allegation and every quotation that appears in the Plaintiffs= Memorandum of Argument.
594. The Court has tried to Amuddle through@ as best it can, but the evidentiary and discursive problems in the materials mean that the positions put forward are highly suspect and, even if the document were acceptable on formal grounds, the reasonable person could hardly give it any real weight in terms of the allegations advanced.
595. There is one respect, however, in which the Plaintiffs= written materials have a very solid evidentiary value that would not be lost on the reasonable person.
596. The problems that the Court has been attempting to resolve since this matter was returned for re-trial in 1997, have had less to do with the underlying issues in the dispute than they have with the procedure and conduct of counsel. And these materials are evidence for the reasonable person who needs to understand what some of those problems have been, and continue to be.
597. Also, strongly on display in the Memorandum of Argument is Plaintiffs= counsel=s insistence upon re-arguing issues that have already been decided and which are res judicata. That problem was very much at the heart of the Court=s decision of December 6, 2004 dealing with the role of the Interveners. In this motion on apprehended bias, for instance, we see Plaintiffs= counsel again going through the will-say standard issues in an attempt to show that the Court obviously got that decision wrong, so the reasonable person would apprehend bias. Yet, this is a decision that the Plaintiffs (who are not shy of appealing Court orders) did not appeal, and in relation to which Plaintiffs= counsel has indicated to the Court that the Plaintiffs accept the standards set by the Court, and according to Ms. Twinn=s correspondence, have actually completed will-says that meet those standards.
598. Judges are not infallible. They can make mistakes. When they do, the Federal Court of Appeal is there to correct them. If the Plaintiffs cannot accept a Federal Court decision, they can appeal it. Alleging apprehended bias after the appeal period has expired is just a way of avoiding the Federal Court of Appeal and trying to have the issue argued all over again before another trial level judge.
599. We also see in these materials how unhelpful the elliptical quotation can be. I have already mentioned an egregious example of this device in paragraph 15 of the Plaintiffs= Memorandum of Argument, but it is not the only one.
600. And, of course, there is the general tendency prevalent throughout in this motion of using selective quotation, de-contextualizing the record, and a reliance upon innuendo and revisionist statements.
601. Elliptical quotation, innuendo and revisionism are neither evidence nor argument. They contribute nothing to the matter in hand.
602. In the context of a single motion, these practices might not seem like much of a hindrance, but in the context of a long dispute (that has been going on since 1986, and where it was as long ago as 1997 when the matter was returned for re-trial, and where the trial looks like being lengthy), these things are a major concern because their deployment impedes the efficient administration of justice. The whole written production of the Plaintiffs in this motion lacks objectivity and balance, and the credibility that can only come from objectivity and balance. It attempts to present its targets in the most discreditable light possible, and for this reason is not a reliable basis for the judgment of the reasonable person, fully informed, who has thought the matter through.
603. I believe that the reasonable person would take note of these additional factors when assessing some of stern language that Hugessen J. and Russell J. have felt compelled to use in order to curb attitudes, practices and arguments that they have felt were not assisting progress towards trial.
604. I raise these matters here with some reluctance because of the already over-charged atmosphere of these proceedings, but the nature of the allegations made in this motion requires the Court to say something about them, and Plaintiffs= counsel, Mr. Healey, has chosen to put his own conduct directly at issue. Finally, it also has to be stated clearly that the questionable practices, excesses and prolixities on full display in these materials necessitate an inordinate amount of time and effort on the part of other counsel and the Court to correct them, and seriously impede the progress of these proceedings. These matters will obviously have to be taken into account when costs are considered.
¼
CONDUCT ISSUES
621. Notwithstanding the Court=s general feeling that this is not the appropriate time to address conduct issues head-on, the problem that the Court now faces is that, having reviewed the written materials submitted for this motion at considerable length, there is a significant issue that cannot be ignored. And this is now the time for plain speaking from the Court which, as I mentioned earlier, is absolutely essential, in my view, in this kind of motion to avoid bias (apprehended or otherwise) being raised merely as a matter of course. The jurisprudence is replete with warnings that allegations of bias (apprehended or otherwise) should not be made lightly and that they should only be made if supported by sufficient material. This is because such allegations strike at the heart of our judicial system and undermine public confidence in the impartiality and integrity of the judiciary. At a personal level, of course, there can be no greater criticism of an individual judge than that she or he is in breach of the oath of office. As this motion has shown, such allegations are easy to make, but difficult to repel.
622. Having reviewed the oral and written submissions of Plaintiffs= counsel against the record, I have been driven to certain conclusions that are deeply troubling but which, on the basis of what I now see before me, it is my duty to address in some way.
623. Mr. Healey is the architect of this motion. His affidavit is the principal evidence offered against Hugessen J. and Russell J. and he is an author of the Memorandum of Argument that details the Plaintiffs= complaints about the Court and the judges it names. He is the one responsible for the lay affidavits that are formulaic and identical in nature and that do little more that repeat opinions he has provided. Those witnesses are not objective observers of the situation who can speak to material issues that have not been filtered through Mr. Healey and Ms. Twinn. Ms. Twinn says she has read the affidavit of Philip Healey and she agrees with its content. So, in the end, just about everything comes back to Mr. Healey.
624. Mr. Healey has said clearly that, as regards Russell J., he has been treated at all times with appropriate courtesy in his appearances before the Court. He has also said that he does not believe that Russell J. has acted or spoken in any way that would suggest personal animus or bias towards him as a lawyer.
625. The gravamen of his complaint is that he believes Russell J. is pre-disposed against the position of his clients on the self-government issue and he does not like the Atone@ used by the Court in some of its decisions. Presumably, he has no complaint against the Court where its decisions show an acceptance of positions he has advanced, although, even here, he appears to suggest that acceptance only occurs when the jurisprudence is so Atrite@ that the Court cannot follow its natural inclinations and favour the Crown. But what he truly does not like is the Atone@ evident in some of the reasons where his arguments have not been accepted by the Court.
626. It is apparent to me from my review of the materials that Mr. Healey does not like being told that certain arguments he has brought to the Court are untenable. He does not like being told that he should not use his clients= breach of a Pre-Trial Order as an opportunity to discount the rights of other parties. He does not like being told that ad hominem attacks upon opposing counsel are not acceptable to the Court. He does not like being told that the Court does not appreciate his re-arguing issues before the Court that the Court feels are clearly res judicata.
627. Of course, if he disagrees with decisions of the Court, he can advise his clients to appeal. But in this motion a collateral attack is made on several decisions that were not appealed, and the mechanism used is apprehended and, sometimes, actual bias.
628. The written materials submitted for this motion reveal that Mr. Healey, rather than correct the matters of concern drawn to his attention by the Court, and rather than appeal certain decisions, has chosen instead to question the impartiality of various judges of the Federal Court in a way that is, at times, personal.
629. Mr. Healey=s evidence and the Memorandum of Argument are imbued with language and methodologies that suggest that he seeks to impugn the integrity the trial judge in particular, and this factor cannot be eradicated by simply removing the allegation that Russell J. Aengaged in private conversations with the Crown... .@ The personal attack is deeply ingrained in the written materials and accounts for their excesses, their skewed interpretations, and their inaccuracies. There can be no mistaking the implications: Aand he was putting pressure on us and he knew he was putting pressure on us, and he knew that you and opposite counsel were putting pressure on us.@ And there can be no doubt about who Mr. Healey thinks he is defending: Ahe has never been treated or had his arguments described in such a way.@
630. The message in the materials is loud and clear: Mr. Healey not only sees these proceedings as a personal battle with opposing counsel, he has also placed himself in personal confrontation with the Court.
631. This confrontational approach, and the willingness to impugn in a personal way the integrity of named judges, has no place in a Court of Law. It has no place because it impedes the fair and efficient administration of justice and is a direct threat to the rights of all parties involved. And the Court has a duty to ensure that the rights of all parties do not become trammelled in what one legal counsel has come to see as his own personal confrontation. What I see in these materials is clear evidence of a breakdown of legal process in this case. Mr. Healey in this motion is not fulfilling his duties to the Court from a position of detachment, and he is not conducting himself with the objectivity required by our adversary system.
632. The Plaintiffs and the Crown have reached a point in these proceedings where an extremely important matter needs to be determined before the trial begins: to what extent is self-government an issue raised by the pleadings? The answer to this question will have a direct impact upon preparation for trial and the nature of the evidence that both sides decide to call.
633. The Court is being hampered from resolving this impasse by the present motion. It is extremely unfair to all parties to have decisions on important issues delayed because Mr. Healey does not like the Atone@ used by the Court from time to time, unless, of course, that tone is evidence of some kind of bias against the rights of the Plaintiffs. My review of the record has convinced me that, from the perspective of the reasonable person test, there are no grounds whatsoever for suggesting that the Court is not fully alive to the Plaintiffs= rights or that it has not taken active steps to protect them, sometimes in the face of inconsistent and extremely discouraging behaviour on the part of Mr. Healey. That Atone@ has not jeopardized the respective rights of the parties and has, in fact, been part of the Court=s attempts to ensure those rights are not undermined by personal confrontation.
634. Mr. Healey also appears to believe that Russell J. can be made to change his position and to favour his arguments if Mr. Healey alleges an apprehension of bias in a notice of appeal. In other words, after first being manipulated by the Crown and the Interveners into excluding evidence relevant to the Plaintiffs= claim, Russell J. can then be made to come over to the Plaintiffs= side and be fair for a change.
635. These are direct attacks upon the integrity of a judge and his attitude towards his oath of office. Needless to say, they are not particularly pleasant views to hear, but that is not my real concern.
636. What they tell the Court at this stage, and this is my concern, is that conduct the Court has attempted to correct as a prelude to moving into a long trial is not going to be corrected, and that Mr. Healey remains unrepentant and is prepared to confront the Court in a personal way rather than follow the procedures and directions embodied in the Court=s decisions.
637. I do not believe that the rights of the parties can be fully protected if the proceedings are conducted at this level. There is, first of all, the enormous waste of resources to consider that can be somewhat compensated for in costs, but not entirely. There is also the unnecessary confrontation that results if legal counsel decides it is acceptable to engage in personal attacks against opposing counsel and to attack the integrity of the trial judge. And, of course, there is a terrible disservice to the parties when their rights are lost sight of, and the Court becomes embroiled in deciding issues that have no real reason to be before the Court and finds itself sidetracked by personal confrontation.
638. Mr. Shibley=s impeccable handling of the argument at the hearing of this motion cannot be used to mask the real problems that beset these proceedings. As I said at the time, he was more help to the Court that he realized because, although he did not know the record and was dependent for his arguments and his view of the facts upon Ms. Twinn and Mr. Healey, he reminded the Court of just how cooperative and efficient opposing counsel can be, even when they appear as adversaries in a highly-charged and contentious motion.
639. I said at the hearing that something constructive needs to come out of this motion for the sake of the parties involved. I cannot withdraw because, in my view, the law is very clear that it is my duty not to stand aside in these circumstances. At the same time, however, I do not see how these proceedings can continue if detachment and objectivity are abandoned and personal confrontation is allowed to hold sway.
640. I will need advice from all counsel on this issue. I had hoped to avoid this conclusion, and that the problem would correct itself, but a careful review of the materials placed before me in this motion has convinced me that turning a blind eye to it now is not commensurate with protecting the rights of all parties and ensuring a fair and efficient trial on the merits.
CONDUCT ISSUES
General
[12] The significant conduct issues referred to in my May 3, 2005 decision have been somewhat addressed by the Plaintiffs themselves. Mr. Molstad of Parlee McLaws LLP has replaced Mr. Healey as lead counsel for the Plaintiffs. But Ms. Twinn, who played a prominent role in the preparation of the materials for the Bias Motion and endorsed what Mr. Healey said, is still the solicitor of record for the Plaintiffs and attends all Court hearings. There is also some indication that Mr. Healey continues to be involved on behalf of the Plaintiffs, but his precise role has not been disclosed.
[13] Neither Mr. Healey or Ms. Twinn, as officers of the Court, has ever offered an explanation or provided a response to the very serious conclusions of the Court concerning their roles during the Bias Motion. Hence, the Court has no reason at this point to question or temper its own findings concerning these two lawyers, and their silence has, in fact, merely confirmed the Court's worst suspicions. Apparently, as officers of the Court, they feel no obligation to explain conduct that was, in my view, deplorable.
[14] For purposes of the present motions dealing with costs, the Interveners have agreed with the Plaintiffs that, in exchange for the following undertaking by the Plaintiffs, they will not seek costs under Rule 405 of the Federal Court Rules, 1998, against counsel personally:
1. The Plaintiffs are responsible for, and bound by, Mr. Healey's conduct in the Bias Motion and in the steps leading up to it, including but not limited to:
a) The entirety of the written representations filed on that motion;
b) The content of Mr. Healey's affidavit and cross-examination evidence; and
c) The submissions made in oral argument.
1. The Plaintiffs will not argue that the quantum of costs should be reduced if the Court finds that it is Mr. Healey, and not the Plaintiffs, whose conduct constitutes an aggravating factor.
Officers of the Court
[15] While the Court approves of this arrangement and the reasons for it - "adding Plaintiffs' former counsel as a party to this motion would seriously undermine the atmosphere of courtesy among counsel that is beginning to develop both in and out of the courtroom" - the Court must still address counsel's conduct from the perspective of the cost issues raised in these motions and the duties of Mr. Healey and Ms. Twinn as officers of the Court. This is because both Mr. Healey and Ms. Twinn continue to be involved in these proceedings on behalf of the Plaintiffs. My May 3, 2005 decision makes it clear that the conduct issues arising from the Bias Motion were a matter of serious concern for the court and needed to be addressed. Both Mr. Healey and Ms. Twinn have been given notice of the present motions for costs and they know that their conduct is a significant issue. Neither has chosen to respond, although Ms. Twinn was present throughout the oral hearing.
[16] Because no motion for costs under Rule 405 and no contempt proceedings have been initiated, I am conscious that Mr. Healey and Ms. Twinn have not, formally at least, been called upon to answer for their conduct before the Court. But my findings of May 3, 2005 stand, and Mr. Healey and Ms. Twinn have declined to explain to the Court why they behaved as they did.
[17] Mr. Healey and Ms. Twinn chose to allege in the notice of motion for the Bias Motion that I, as trial judge in these proceedings, "engaged in private conversations with the Crown designed to defeat the central allegation raised by the Plaintiffs in this proceeding, namely the Plaintiffs' right of self-government ¼"
[18] As I point out in paragraph 502 of my May 3, 2005 reasons, this allegation was not only made in the motion materials, "it was sworn to under oath by Counsel for the Plaintiffs." My findings and conclusions on this issue have not been questioned, or even referred to specifically, by the Plaintiffs and their new counsel, Mr. Molstad.
[19] Yet Mr. Healey and Ms. Twinn knew that this allegation was false because the Court had explained in writing to all counsel that the Crown had merely contacted the Court Registry with a routine inquiry as to whether, because a designated filing date fell on a Saturday, the Registry would be applying the normal rule and would accept the materials that the Crown wished to file on the next business day.
[20] Yet Mr. Healey and Ms. Twinn still chose to make and maintain a startling accusation that was not only defamatory of Mr. Kimmis (the Crown counsel involved) and the trial judge, but was, in addition, an allegation of professional misconduct by Mr. Kimmis and of judicial misconduct by me.
[21] Why did they do this? They have declined to explain. But there can only be two reasons. The first possibility is that we have two legal counsel who, notwithstanding the facts as they knew them, were willing to make misrepresentations (even under oath) to try and discredit Mr. Kimmis and the trial judge, including accusations that amount to misconduct. This is a very disturbing conclusion. But the only other possible explanation is even more disturbing: and it is that after having been given the facts by the Crown and the Court as to why the Crown contacted the Registry and inquired about the filing date, Mr. Healey and Ms. Twinn wanted it to be thought that they considered that explanation to be a lie, and this is why they continued to assert on the public record that I "engaged in private conversations with the Crown¼"
[22] So not only did two officers of the Court make allegations of serious misconduct by Crown counsel and the trial judge for which they had no factual basis, they also chose to continue those allegations after a full explanation was provided, thus compounding their initial misrepresentations and insults by refusing to accept the explanation and withdraw their allegations.
[23] It is difficult to know what to make of, or do with, legal counsel and officers of the Court who engage in this kind of conduct. When I put the matter to Mr. Shibley, who conducted the oral argument for the Plaintiffs at the hearing of the Bias Motion, he could offer very little by way of explanation, other than to say that the allegations should never have been made:
Mr. Shibley: I don't know how I would characterize it, My Lord, but all I can tell you is that it's not our case. And as far as I'm concerned, it shouldn't have been put in there.
[24] Mr. Shibley also made it clear at the oral hearing that he personally found such disrespectful conduct by legal counsel to be inappropriate. Unfortunately, these retractions and acknowledgements by Mr. Shibley do not remedy the situation. As I pointed out in my May 3, 2005 decision, the personal animus of Mr. Healey (supported by Ms. Twinn) was so deeply engrained in the Plaintiffs' materials that it could not be winnowed out. Mr. Healey, endorsed by Ms. Twinn, was quite willing to swear under oath that I, for instance, "was putting pressure on us [the Plaintiffs] and he knew that you and opposite counsel were putting pressure on us," and to concoct a totally skewed and revisionist account of the proceeding that bore little resemblance to the factual record. Other accusations of actual bias were made throughout the written materials by Ms. Twinn and Mr. Healey, and I refer to some of them in my May 3, 2005 decision. Although the actual bias allegation was withdrawn (but only at the hearing) by Mr. Shibley, it continued to inform the Bias Motion because the written materials filed by the Plaintiffs were clearly imbued with a sense of personal animosity directed at opposing counsel and the Court, and their defects clearly revealed an attempt to misrepresent the Court record in a way that would discredit the trial judge and the Federal Court in general, and subvert due process in these proceedings.
[25] Notwithstanding Mr. Shibley's formal withdrawal of the "private conversations with the Crown" allegations at the hearing, and his acknowledgement that they should never have been made, the invention and publishing of those allegations, without any evidentiary base, repeating them under oath, and continuing to assert them following a full explanation, must be one of the most serious insults and accusations of professional calumny against opposing counsel and the Court that it is possible to make. And although it is probably the most scurrilous allegation found in the materials, it is not the only one. Yet, Mr. Healey and Ms. Twinn feel no obligation to offer an explanation for this conduct. They appear to be of the view that their behaviour should be of no further concern because the Plaintiffs have agreed to assume the financial responsibility if the Court decides their conduct should be a factor to be considered in awarding costs.
[26] The Plaintiffs, however, are not officers of the Court. The responsibilities of an officer of the Court cannot just be bought off. And that is because those responsibilities are an absolute trust. That trust cannot be bartered away or avoided by having the client agree to pay for the financial consequences of counsel's conduct.
[27] Ms. Twinn and Mr. Healey should not, therefore, assume that the Court's acceptance of the agreement between the Plaintiffs and the Interveners on the cost implications of Mr. Healey's conduct relieves them, as officers of the Court, from the consequences of that conduct.
[28] For the sake of the future of these proceedings and the rights of the Plaintiffs, the Crown and the people represented by the Interveners, I do not believe that the Court should at this point initiate contempt or professional misconduct proceedings against Mr. Healey and Ms. Twinn. Mr. Molstad has indicated to me that he and the Plaintiffs are now tightly focused on trial preparation and ensuring that the trial begins in January, 2007. I do not want them distracted by motions and issues that are not directly related to the merits of the dispute as set out in the pleadings. Bearing in mind the fraught and confrontational history of these proceedings, it is of crucial importance at this juncture when new counsel have been engaged by the Plaintiffs to allow time, and to create an environment, within which all counsel can establish a working rapport. However, Mr. Healey and Ms. Twinn continue to be involved, so that it is not possible to merely consign their conduct to the past. There is a certain irony, not to mention injustice, in allowing those who have shown themselves in these proceedings to be unconscionably eager to besmirch the reputations of others, and who have disrupted fair and efficient legal process, to avoid the consequences of their own transgressions. However, the present demands of this lawsuit require that these matters be set aside, at least for the time being. The personal animosity and collateral subversive intent of Mr. Healey and Ms. Twinn, which I found in my May 3, 2005 decision had resulted in a break down of effective legal process, must not be allowed to take precedence over the rights of the parties and to hamper this law suit any further than has already occurred. As a consequence, these conduct issues, in so far as they affect Mr. Healey and Ms. Twinn personally, will have to wait until such time as the Plaintiffs and the Crown have been given the opportunity to have their dispute heard on the merits.
[29] For present purposes, Mr. Healey and Ms. Twinn have chosen to let the record stand without demurral or explanation and, in particular, they have said nothing to suggest that the Court was either wrong or unduly harsh in the conclusions it drew and leveled at them in its May 3, 2005 decision. They appear to be content, therefore, to allow the materials they prepared for the Bias Motion and the Court's conclusions concerning the intent and effect of those materials to stand as their epitaph as officers of this Court. So be it. What those materials reveal is that Mr. Healey, supported by Ms. Twinn, had no compunction about making misrepresentations under oath, misrepresenting reported cases to the Court, decontextualizing the court record to invent an inaccurate and revisionist account of the proceedings, and attacking at a very personal level the professional integrity of opposing counsel and the trial judge. I pointed out in my May 3, 2005 decision that bias motions should not be used to subvert our legal system which relies heavily upon responsible legal counsel. What is at stake in this case cannot be brushed off as some kind of understandable and forgivable aberration by counsel involved. Its purpose and methodology was all too manifest. Our legal system has no place for this kind of conduct.
[30] These are not easy things to say but, as I made clear in my May 3, 2005 decision, plain speaking is a duty in the face of a groundless and unwarranted motion that placed the personal animus of Plaintiffs' counsel before the rights of the parties and the integrity of opposing counsel and the Court.
Conduct and Costs
[31] For the purpose of the costs issues raised in the present motions, the excerpts from my May 3, 2005 decision already quoted make it clear that the Court found the Plaintiffs' materials submitted for the Bias Motion to be little more than a crudely concocted rant of misrepresentations and inaccuracies that were intended, not to advance the proceedings on the merits, but to intimidate the Court and subvert the judicial process itself in order to evade the consequences of adverse rulings and orders. Having failed to convince two judges of the Federal Court, and the Federal Court of Appeal on occasion, in motions and appeals where they were given a full and fair hearing, the Plaintiffs tried to discredit the whole Federal Court, and Justices Hugessen and Russell in particular. In the process, an inordinate amount of time and resources were wasted. This waste and misconduct cannot be allowed to go unsanctioned. A significant discouragement is needed to ensure there is no repetition of such tactics. The Plaintiffs cannot go forward with this lawsuit under the impression that the trial judge and the Federal Court can be intimidated or distracted from the merits of the case.
[32] In saying this, I remain very conscious of the phrase I borrowed from Ms. Eberts as part of my reasons in the Bias Motion concerning that "oft - documented sense of estrangement of First Nations from the legal system of Canada ¼ ." In my view, no sense of estrangement or historical grievance can justify or explain the disdain for truth and accuracy, or the groundless personal attacks upon opposing counsel and the Court, that were utilized by the Plaintiffs in the Bias Motion.
[33] The Bias Motion brought by the Plaintiffs did not bespeak a "sense of estrangement." As I found in my May 3, 2005 decision, its manifest intent was to attack collaterally Court orders already made and not successfully appealed. It was a "groundless and unwarranted" attempt to discredit the Federal Court and its judges, prompted by pique and personal animus.
[34] Our system already provides the means to deal with rulings that go against what one of the parties wants; it provides a right of appeal, and the Plaintiffs have not been shy in the past of using this right. There was nothing to prevent the Plaintiffs from appealing any ruling made by Justices Hugessen and Russell with which they did not agree.
[35] In the Bias Motion, the Plaintiffs decided they would try to subvert judgments they had not appealed - and even appeals that the Court of Appeal had decided against them - by mounting a belated case for apprehended systemic bias in the Federal Court, and on the part of Justices Hugessen and Russell in particular, that would, if successful, have taken these proceedings back (at least) to the Court of Appeal Decision of 1997. And in order to achieve that objective, they were willing to make allegations of apprehended bias, and even actual bias, that the Court found to be "groundless and unwarranted."
[36] The Court's findings and conclusions of May 3, 2005 stand in their entirety, but the following are of particular importance for the issue of costs raised in the present motions. It is not acceptable for the Plaintiffs and/or their counsel to:
(a) Misrepresent the facts of the record before the Court (e.g. suggesting that the Court showed a reasonable apprehension of colluding with the Crown and the Interveners to ensure that the Plaintiffs did not have the time they needed to complete will-says and prepare for trial by January 10, 2005, when the record shows clearly that the Plaintiffs were given the time they requested to complete will-says and it was the Plaintiffs who insisted that the trial begin on January 10, 2005);
(b) Misrepresent what a legal authority says in the hope that the Court will overlook it (e.g. the use made by the Plaintiffs of the Paulette case);
(c) Deliberately take up the Court's time, and the time of opposing counsel, with revisionist and skewed interpretations and unsupported assertions that bear no relation to the full record (see the Plaintiffs' written brief throughout and the oral argument based upon it);
(d) Attempt to re-argue, in the face of repeated warnings, matters that are obviously res judicata and that have not been successfully appealed;
(e) Attack the character and integrity of the trial judge without good reason or any evidentiary basis;
(f) Attack the character and integrity of opposing counsel without good reason, and then repeat that attack under oath when the Court has already ruled on the matter and told counsel to desist from such conduct;
(g) Attack the whole Federal Court in a fit of pique without any justification;
(h) Make groundless and unwarranted accusations of actual and/or apprehended bias;
(i) Use the Court's trust in counsel as an officer of the Court to mislead the Court concerning the implications of other Court decisions (see, for example, the use made by the Plaintiffs of the Chief Victor Buffalo case);
(j) Unnecessarily lengthen proceedings and waste the time of the Court and opposing counsel by producing materials that are disorganized, inaccurate, incomprehensible, in breach of previous Court orders and inadmissible, and then put the Court and opposing counsel to the trouble of setting the record straight and refuting the unsupported slurs and innuendo placed on the public record.
[37] In the end, these are simple matters of avoidance and are, in addition, instinctive behaviour for most counsel. Without them, our legal system just cannot function. In addition, the Plaintiffs have been warned in the past concerning conduct issues, yet much of what they did in the Bias Motion contravened what they have been told and ordered not to do. This is a significant problem that the Court must attempt to control, and the use of costs is one of the few practical ways that, in the present circumstances, the Court can attempt to discourage activity that, as I found in my May 3, 2005 decision, had led to the complete breakdown of the legal process in this case.
[38] In making these comments concerning the conduct of Plaintiffs' counsel, and the decision of the Plaintiffs to assume financial responsibility for that conduct in these motions, I wish to make very clear that the Court is concerned only with the conduct of Mr. Healey and Ms. Twinn. As I said in my May 3, 2005 reasons, Mr. Shibley's handling of the Bias Motion on behalf of the Plaintiffs is not an issue, even if the Court could not agree with him and felt he had relied too much upon the written representations of Mr. Healey and Ms. Twinn. In addition, it must be made clear that Mr. Molstad and his team from Parlee McLaws LLP, who have now taken over the role of lead counsel on behalf of the Plaintiffs, have the Court's complete confidence, although a residual concern will obviously remain if they continue to rely upon Ms. Twinn and Mr. Healey in the way that Mr. Shibley did. Indications so far, however, are that Mr. Molstad is taking a thorough and independent look at the record, as well as the work done by previous counsel, and this is of immense reassurance to the Court.
AVAILABILITY OF COSTS TO THE INTERVENERS
[39] Rule 400 of The Federal Court Rules,1998 says that costs are within the absolute discretion of the Court, and Rule 401 makes it clear that, where the Court is satisfied that a motion should not have been brought, "the Court shall order that the costs of the motion be payable forthwith." I have already ruled in my May 3, 2005 decision that the Bias Motion was "groundless and unwarranted"; it should never have been brought.
[40] As regards the Interveners, the jurisprudence indicates that, while costs are not generally available to them, they may receive costs where their interests are directly affected by the proceedings, and other factors support such an award. For example, in the recent decision of the Alberta Court of Appeal in Lynnview Ridge Residents' Action Committee v. Imperial Oil 2005 ABCA 375, intervener costs were awarded under the highest column of the Alberta Tariff. After citing numerous authorities in which interveners have been awarded costs, Justice Hunt provided the following helpful guidance at paras. 25 and 26:
I conclude that there are circumstances where an intervener with a special interest should be awarded costs. Although the circumstances will vary, the factors to be taken into account in determining whether it is appropriate to deviate from the general rule include:
_ Has the intervener contributed to the Court's deliberations by adding a viewpoint that otherwise would not have been considered? Alternatively, did the parties themselves present the same arguments or points of view?
_ Is there legislation relevant to the case to suggest whether the intervener has a special interest or an important role to play?
_ What is the nature of the intervener's special interest? The interest might be financial, proprietary, non-pecuniary or other.
Generally, the resources of interveners should not be taken into account in determining whether or not they are entitled to costs: B. (R.) v. Children's Aid Society of Metropolitan Toronto, supra, per L'Heureux Dubé at para. 161. Different or additional principles may apply in cases involving constitutional issues, which this case does not.
[41] In the present proceedings, both the Federal Court and the Federal Court of Appeal have repeatedly recognized the unique role and direct interest position of the Interveners in successive motions, and have awarded separate costs to them accordingly. In my Order of January 19, 2006, for instance, in deciding costs in relation to the "workable solution" motion brought by the Plaintiffs, I found as follows:
The long history of these proceedings has repeatedly shown the unique role of the Interveners and the recognition that has been given to the fact that the Plaintiffs' claim has a direct impact upon individual persons for whom the Intervener's speak. The Interveners represent individual persons whose personal band membership has been affected by Bill C-31 and which will be directly affected by the outcome of this litigation.
As with the "workable solution" motion - but to a far greater extent - the Bias Motion had important implications for the whole timing and conduct of the proceedings that directly affected the interests of the individuals represented by the Interveners; and those interests were not coterminous with the interests or the position of the Crown.
[42] At its broadest, the Bias Motion involved a collateral attack upon many rulings made by Justices Russell and Hugessen going back to 1997. If successful, it is at least arguable (and in my view, clear) that the result would have been to vitiate court orders and directions dealing with the whole conduct and timing of the trial, the method, content and timing of disclosure of proposed evidence, and the terms and scope of the Interveners' participation at trial. Indeed, in their written and oral submissions, the Plaintiffs singled out the Interveners and leveled particular accusations against them. All of this required a vigorous, thorough and comprehensive response from the Interveners that went well beyond anything the Crown could have been expected to address in putting together its answer to the Plaintiffs in the Bias Motion. In addition, the Plaintiffs raised in a pre-emptive way in the Bias Motion their position regarding self-government, a matter of vital interest to the Interveners and in relation to which the Court required their respective comments.
[43] Using the ruse of an apprehension of Bias Motion, which the Court found to be "groundless and unwarranted," the Plaintiffs mounted a broad and inclusive collateral attack on the proceedings as they have evolved since the Court of Appeal decision in 1997 that sent the matter back for re-trial. They should not now be complaining that the Interveners need not have responded in the way they did to such a thoroughgoing attempt to undo the effects of so much effort and expenditure.
[44] To their credit, the Plaintiffs do clearly acknowledge in these motions that "NSIAA, NCC(A) and NWAC are entitled to costs of the bias motion." They also concede that "the findings of this Court in dismissing that motion [the Bias Motion] support an award of costs to NSIAA and NCC(A) on a solicitor and client scale in relation to those aspects of the motion raising allegations of misconduct against their counsel." So, in theory at least, the Plaintiffs concede that the Interveners should have costs and that they can be awarded costs on a solicitor and client basis. What they take issue with is an award of "solicitor-client costs for the entire motion to all four Interveners":
7. The Plaintiffs do not dispute that some of the findings of this Court in dismissing the bias motion meet the threshold of an award for solicitor-client costs to the Crown. The Plaintiffs do not attempt to re-visit or re-litigate these findings in the context of these costs motions.
8. It will be noted however, that the Crown is not now before this Court seeking costs. The issue of the Crown's costs have been resolved.
9. The Plaintiffs submit that the great majority of the conduct found by this Court to support an award of solicitor-client costs warrants an award of solicitor-client costs to the Crown but not to all four of the Interveners. It is submitted that the only conduct found by this Court to have occurred in the context of the bias motion which is specifically referable to the Interveners as distinguished from the Crown were allegations of misconduct against Interveners counsel.
10. Again, the Plaintiffs agree that the findings of this Court respecting allegations of misconduct against the Interveners' counsel provide a basis for an award of solicitor-client costs in respect of that aspect of the bias motion. However, it is submitted that it would be excessive to award solicitor-client costs for the entire motion to all four Interveners. Aside from these specific allegations, the Crown effectively responded to the bias motion and the Crown's entitlement to costs is not before this Court.
[45] It is not correct for the Plaintiffs to suggest that all four Interveners are seeking solicitor and client costs for the entire motion. Only NSIAA is seeking solicitor and client costs. NCC(A) and NWAC are seeking elevated costs under Tariff B, and NCC is asking for party and party costs assessed on the basis of Column III of Tariff B. Notwithstanding this inaccuracy, I will deal with these motions on the understanding that what the Plaintiffs propose is that "the maximum amount of costs to be awarded to the Interveners NSIAA, NCC(A) and NWAC in relation to the bias motion is the mid-range of Column V of Tariff B, with no multiplier to be applied" and that "NCC should be entitled to no costs of the bias motion" or, at most, "taxable costs at the mid-range of Column I with no multiplier to be applied."
THE FUNCTION AND PURPOSE OF COSTS
General
[46] As a general proposition, the Plaintiffs say that, in deciding the cost entitlement of the Interveners in these motions, the Court should use the "indemnity principle" and should not award costs "which exceed actual indemnity for the amounts which were charged and paid to the bias motion. In other words, the Interveners ought not to be permitted to profit from the bias motion."
[47] The Plaintiffs say that, even if there was conduct in the Bias Motion sufficient to support an award for solicitor-client costs to the Crown, this is not sufficient to warrant an award of solicitor and client costs, or elevated costs, to the Interveners.
[48] The justification offered for this position is that "the only conduct found by the Court to have occurred in the context of the bias motion which is specifically referable to the Interveners as distinguished from the Crown were allegations of misconduct against Interveners counsel."
[49] I have already indicated why I cannot accept this narrow approach to what was at stake for the Interveners in the Bias Motion. In retrospect, the Bias Motion appears to have been a complete subterfuge for a collateral attack on Court orders made by Justices Hugessen and Russell since 1997 (some of them confirmed by the Court of Appeal, and some of them not appealed at all). And that collateral attack was made in direct contravention of admonitions and Court orders that told the Plaintiffs to stop re-arguing matters that have already been decided and not successfully appealed. Also, as the Court found in its May 3, 2005 reasons, that collateral attack was aimed at undermining not only everything decided in favour of the Crown since 1997, but also every Court order and direction relevant to the Interveners and their status and role in these proceedings made since 1997.
[50] As part of these cost motions, the Plaintiffs have agreed that they are responsible for and bound by Mr. Healey's conduct in the Bias Motion and in the steps leading up to it. In their written and oral submissions they provide the Court with no explanation for the Bias Motion that might mitigate in any way the findings made by the Court in that motion, or reassure the Court that the Bias Motion had any purpose that was not a complete pretense for a collateral attack of the hard-won rights of the Interveners as well as the Crown.
[51] In one way this is entirely creditable. Under Mr. Molstad's guidance the Plaintiffs have now indicated that "they do not attempt to re-visit or re-litigate these findings [i.e. in the Bias Motion] in the context of these costs motions." But it also means that, in deciding the costs entitlement of the Interveners, the Court is bound by its findings in the Bias Motion, and must make what it can of the silence of the Plaintiffs and their counsel concerning those findings. Quite apart from the agreement struck with the Interveners to assume the costs implications of Mr. Healey's conduct, the Plaintiffs have made no attempt to distance themselves from that conduct in any way. Of the deplorable written brief submitted with the Bias Motion, Mr. Molstad will only say "It says what it says." In the absence of any explanation from the Plaintiffs for the serious conduct issues associated with the Bias Motion, and bearing in mind that Mr. Healey and Ms. Twinn continue to act for the Plaintiffs, there is nothing to suggest that the Plaintiffs have any regrets at all about the Bias Motion, other than the fact it did not succeed. This being the case, the Court must act accordingly and use whatever means it has at its disposal to ensure that the disruptive, wasteful and subversive conduct evident in the Bias Motion is not repeated.
Indemnity and Beyond
[52] The Plaintiffs say that, in setting and awarding costs to the Interveners, the Court should not stray beyond the indemnity principle. The Interveners, and NSIAA in particular, say that the Court can use costs as a sanction and a deterrent in a situation where conduct warrants an award of solicitor and client costs, or the elevation of costs by using a multiplier. In this regard, the Interveners rely principally upon the British Columbia Court of Appeal decision in Fullerton v. Matsqui (District) (1992), 74 B.C.L.R. (2d) 311 (C.A.) and the Supreme Court of Canada decision in British Columbia (Ministry of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371.
[53] In Fullerton, Justice Cumming for the majority had the following to say on this issue at paras. 24 - 25:
24. In my respectful opinion, the position of Matsqui Police Service is untenable. Mr. Seckel is seeking to apply the jurisprudence relating to party-and-party costs in circumstances where other considerations play a more important role. Correct though he is that costs on a party-and-party basis are not designed to profit the successful litigant, he ignores both this Court's specific reasons for awarding special costs and the general rationale behind the award of special costs.
25. When a court makes an order for special costs, it takes the case outside the realm of "costs as indemnity" and moves it into that area I have labeled "costs beyond indemnity." Since the governing factors are not so much indemnity, but rather punishment and deterrence, it matters not that the successful litigant has no fees to pay. This case, in my view, should be dealt with on that fundamental understanding. It is on this basis that the Fullerton's should recover the fees both for the first trial and on appeal.
[54] NSIAA also refers the Court to the following words of Justice LeBel, writing for the majority, in Okanagan at paras. 22 - 25:
22. These background principles continue to govern the law of costs in cases where there are no special factors that would warrant a departure from them. The power to order costs is discretionary, but it is a discretion that must be exercised judicially, and accordingly the ordinary rules of costs should be followed unless the circumstances justify a different approach. For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award. Orkin, supra, at p. 2-24.2, has remarked that:
The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called "outdated" since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexations [sic] litigation and to discourage unnecessary steps.
23. The indemnification principle was referred to as "outdated" in Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464 (Ont. Gen. Div.), at p. 475. In this case the successful party was a law firm, one of whose partners had acted on its behalf. Traditionally, courts applying the principle of indemnification would allow an unrepresented litigant to tax disbursements only and not counsel fees, because the litigant could not be indemnified for counsel fees it had not paid. Macdonald J. held that the principle of indemnity remained a paramount consideration in costs matters generally, but was "outdated" in its application to a case of this nature. The court should also use costs awards so as to encourage settlement, to deter frivolous actions and defences, and to discourage unnecessary steps in the litigation. These purposes could be served by ordering costs in favour of a litigant who might not be entitled to them on the view that costs should be awarded purely for indemnification of the successful party.
24. Similarly, in Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 (B.C. C.A.), the British Columbia Court of Appeal stated at para. 28 that "the view that costs are awarded solely to indemnify the successful litigant for legal fees and disbursements incurred is now outdated". The court held that self-represented lay litigants should be allowed to tax legal fees, overruling its earlier decision in Kendall v. Hunt (No. 2) (1979), 16 B.C.L.R. 295 (B.C. C.A.). This change in the common law was described by the court as an incremental one "when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant" (para. 44).
25. As the Fellowes and Skidmore cases illustrate, modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer; this policy has been codified in the rules of court of many provinces (see, e.g., Supreme Court of British Columbia Rules of Court, Rule 37 (23-26); Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49.10; Manitoba Queen's Bench Rules, Man. Reg. 553/88, Rule 49.10). Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice.
[55] The Plaintiffs seek to distinguish Fullerton on the facts, and they say that Okanagan confirms that "the indemnification principle remains 'paramount' to the law of costs" and the Court only has the discretion to depart from indemnification in the presence of "special factors." The Plaintiffs say that "Such special factors arise where a party who is entitled to a costs award would receive nothing on a strict application of the indemnity principle ¼ ."
[56] It seems to me that the Supreme Court of Canada in Okanagan does not limit the use of costs as an instrument of policy in the way suggested by the Plaintiffs.
[57] The Supreme Court of Canada makes the following matters clear in Okanagan:
(a) "For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award" (para. 22);"
(b) As the Fellowes and Skidmore cases illustrate, modern costs rules accomplish various purposes in addition to the traditional objective of indemnification" (para. 25);
(c) "Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious" (para. 25);
(d) "In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice" (para. 25);
(e) "¼ it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs" (para. 26);
[58] The specific situations mentioned by the Supreme Court of Canada in Okanagan are clearly intended to be illustrative, and not limiting, of the modern approach to costs. If costs can be used, as the Supreme Court indicates, "to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious," then using indemnification as the paramount principal in any particular case might well render any such sanction absolutely useless.
[59] As my findings in the Bias Motion make clear, there could be no clearer case of litigation that was utterly devoid of merit, and which unreasonably increased the duration and expense of these proceedings, or that was just downright scandalous and vexatious than that motion. Even the Plaintiffs concede that there is no dispute "that some of the findings of this Court is dismissing the bias motion meet the threshold of an award for solicitor-client costs to the Crown."
[60] The Plaintiffs say, however, that they have settled matters with the Crown and that "the great majority of the conduct found by this Court to support an award of solicitor-client costs warrants an award of solicitor-client costs to the Crown but not to all four of the Interveners."
[61] To begin with, I do not believe that this is a correct characterization of my findings in the Bias Motion. Those findings do not, as the Plaintiffs suggest, mean that "the only conduct found by this Court to have occurred in the context of the bias motion which is specifically referable to the Interveners as distinguished from the Crown were allegations of misconduct against Interveners counsel."
[62] The Court specifically found in the Bias Motion at para. 123 that, at its broadest, the relief sought by the Plaintiffs "could mean that these proceedings would revert to the status they had following the decision of the Federal Court of Appeal in 1997" so that "everything would be wide open and the parties [and this includes the Interveners] would have to begin again the tortuous path of confronting pleadings, evidence, discoveries, and, indeed, everything that has transpired since 1997." The Court also said the following at paras. 380-383 of its May 3, 2005 decision:
¼
380. Mr. Shibley asserts often that his (sic) is not attacking the orders made in these proceedings or asking that I now set them aside. He says those orders are just facts and his concern is to show that the content and effect of the orders can be tracked and, when they are, they give rise to a reasonable apprehension of bias:
So we're not trying to reverse those orders on this application. What we are saying, though, is that the implications - and the circumstances surrounding the making of comments and the making of the orders per se, that's all germane and relevant to the issue on this application, because they are all factual circumstances that are deemed to be known by the reasonable person.
...
To say it's res judicata, sure it's res judicata, but so what? To say it wasn't appealed, so what?
(Transcript, vol. 2, page 29: 25 to page 30: 24)
381. I do not accept this argument because, if I recuse myself, the effect will be to set orders I have made aside. And some of those orders the Plaintiffs have accepted and have not appealed. So the orders are being attacked and the method being used is recusal, as a result of which the Plaintiffs will be able to argue the points all over again with a new judge without having to bother with the inconvenience of an appeal. And this time, they want to have a say in choosing who that judge will be.
382. So res judicata is not a merely "technical" issue as the Plaintiffs suggest. If the Plaintiffs can by-pass the Federal Court of Appeal and argue an issue de novo before a judge whom they approve, then res judicata disappears as a cornerstone of our judicial system.
383. So, contrary to the Plaintiffs' claims, this is very much a collateral, rear-guard attack upon the Orders of Russell J..
[63] The Plaintiffs chose not to challenge these findings and now they must live with them. At its broadest, of course, the Bias Motion was also very much a collateral, rear-guard attack upon orders of Justice Hugessen. The Plaintiffs have not seriously challenged those findings either. In fact, they have offered no excuse or explanation for their conduct in preparing and conducting the Bias Motion. It was the Plaintiffs who chose to configure the Bias Motion so broadly that it threatened everything that has occurred since, at least, 1997 in these proceedings. It is only now, when faced with the cost implications of their attack that they seek to minimize the consequences of their own actions.
[64] It was also the Plaintiffs who chose to place the Interveners, yet again, in a position where they had to defend vigorously and comprehensively their status and role in these proceedings. The Plaintiffs cannot now say that the Bias Motion only involved the Interveners to the extent of the allegations that were specifically made "against Interveners counsel."
[65] And as regards any kind of sanction that the Court may feel is necessary in this case, the Court has no idea what arrangements the Plaintiffs have made with the Crown or whether those arrangements would, in themselves, constitute appropriate deterrence in the circumstances of this case. Just because the Crown is happy does not mean that the Court should be satisfied that the Plaintiffs egregious conduct in the Bias Motion has been dealt with satisfactorily and in a way that will ensure "the efficient and orderly administration of justice" as directed by the Supreme Court of Canada in Okanagan.
[66] In fact, the silence of the Plaintiffs, as well as Ms. Twinn and Mr. Healey, concerning the findings in the Bias Motion suggests to the Court that they are entirely unrepentant, and that the Court had better do what it can to discourage any repetition of what that unrepentant attitude might give rise to in future. This is particularly important when the Plaintiffs, notwithstanding Mr. Molstad's appointment, have chosen to continue this action with Ms. Twinn as solicitor of record and (apparently) Mr. Healey assisting as part of the team. Their influence is, therefore, still in play and it must be carefully watched and controlled.
[67] It has to be born in mind also that, in the Bias Motion, the Plaintiffs engaged in various forms of conduct that the Court had already ordered them to avoid. They repeated groundless accusations against opposing counsel under oath; they wasted time and resources with prolix and misleading materials and arguments; they filed materials in breach of rule 82; they made collateral attacks on orders and issues that were decided against them long ago and which are res judicata. This conduct directly affected the Interveners and their rights. It is difficult to see how the Court can fulfill its duty to ensure the most just, efficient and cost effective resolution to these proceedings when the Plaintiffs do not appear to think that Court orders are binding. And I am not the first judge in these proceedings to conclude that, to date at least, the Plaintiffs do not appear to think that orders of the Court mean what they say. This is a recurring problem that needs to be remedied. Justice Hugessen found himself having to deal, on occasion, with non-compliance with orders and rules and "a pattern of uncooperative and obstructive behaviour on the part of Plaintiffs' counsel."
[68] Formal contempt and professional conduct proceedings may well be warranted on the facts of this case, but, as I have already indicated, I believe they would be most undesirable at the present time in an action where the Plaintiffs have told the Court they feel burdened by too many motions and where, until the arrival of Mr. Shibley and Mr. Molstad, the whole legal process in this law suit was being thwarted by conduct issues. This situation has changed dramatically since Mr. Molstad assumed the role of lead counsel for the Plaintiffs. The Court does not wish to jeopardize the progress that has been made in this regard by directing the energies and resources of the parties and the Court away from progress towards the trial and by keeping open old wounds that need to be closed. An appropriate award of costs is the only effective way, in the present circumstances, to address the conduct issues dramatized by the Bias Motion and, at the same time, move forward in the spirit of greater cooperation that Mr. Molstad appears to have established with counsel for the Crown and the Interveners, to their mutual credit.
Conclusions on General Principles
[69] I see no principal or persuasive authority to prevent the Court from following the guidance of the Supreme Court of Canada in Okanagan concerning the use of costs as a sanction, even when considering intervener costs, in a situation where:
(a) The Federal Court and the Federal Court of Appeal have consistently recognized that the Interveners have specific interests in the proceeding that warrant an award of costs in their favour;
(b) The broad interests of the Interveners were directly engaged by the Bias Motion in a way that had to be obvious to the Plaintiffs;
(c) The Interveners could reasonably be expected to respond, and did respond reasonably, to the Bias Motion in order to protect their interests and the status and role assigned to them by the Court in these proceedings;
(d) The Bias Motion was groundless and unwarranted and should never have been brought, and the conduct of Mr. Healey, supported by Ms. Twinn, was reprehensible, scandalous and outrageous;
(e) The costs implications of the egregious conduct evident in the Bias Motion have been assumed by the Plaintiffs;
(f) The Plaintiffs have a history of disregarding orders of the Court and have expressed no repentance or explanation for a Bias Motion that, in addition to being entirely unreasonable, contemptuous and vexatious, increased the duration and expense of the proceedings in a way that was completely unwarranted.
[70] To award solicitor and client costs the Court is required to find conduct that is reprehensible, scandalous or outrageous. As the Plaintiffs concede, there are various findings in my May 3, 2005 decision that qualify in this regard. Perhaps the most reprehensible are the unfounded allegations of bias and misconduct against opposing counsel and the Court. As Justice Galligan said in Chin v. Salvation Army Scarborough Grace General Hospital (1988), 28 O.A.C. 388 (Ont. Div. Ct.) at para. 39:
¼
39. While this Court cannot prevent the making of unsubstantiated allegations of this kind, it can penalize those who do. It has long been the practice of the courts to award solicitor and client costs against persons who, in judicial proceedings, make unfounded allegations of fraud. It seems to me that the principle which underlines that policy applies with equal if not greater force to persons who make unfounded allegations of bias, capriciousness or dishonesty against tribunals that carry out judicial or quasi-judicial functions.
THE COST CLAIMS IN THIS CASE: COMMON ISSUES
Indemnity or Objective Assessment
[71] Because of the aggravating factors referred to above, each of the Interveners has submitted a claim for costs in the Bias Motion that the Plaintiffs say exceeds amounts actually charged and paid.
[72] The Plaintiffs argue that, as a basic principle, "the Interveners ought not to be awarded costs which exceed actual indemnity for the amounts which were charged and paid pursuant to the bias motion. In other words, the Interveners ought not to be permitted to profit from the bias motion." Once again, it seems to me that the Plaintiffs are attempting to confine costs to indemnity principles in a situation that cries out for a sanction.
[73] The reason why the cost submissions of the Interveners exceed actual amounts billed and paid is, apparently, that the hourly rates used are based upon reasonable billing rates for senior and junior counsel ($350.00 and $175.00 per hour respectively in the case of NSIAA) rather than upon the hourly rates set in the test case funding arrangements under which the Interveners are participating in these proceedings.
[74] So a basic issue for the Court is whether, assuming as I have, that the facts of this case require a sanction in the form of elevated costs to the Interveners that sanction should or should not exceed amounts actually billed and paid.
[75] On the one hand, to use objective and reasonable rates rather than the rate actually charged may result in a windfall of sorts to the Interveners. On the other hand, to limit a sanction to a lower than usual hourly rate will allow the Plaintiffs to take advantage of special test case funding arrangements in a situation where they have put the Court and the Interveners to great cost and inconvenience in a motion that was groundless and unwarranted, where they have leveled outrageous accusations against the reputations of the trial judge and opposing counsel, where they have provided no explanation or response to the Court's findings of May 3, 2005, and where they have shown themselves to be unrepentantly capable of disregarding Court orders. In fact, if ever there was a situation where one of the parties to a dispute needs to be told in no uncertain terms that it cannot conduct a law suit in the manner outlined in the Court's May 3, 2005 decision, this is it.
[76] Counsel for NSIAA has drawn my attention to the similarities between the case at bar and the situation faced by the Ontario Divisional Court in Chin where, at paras. 38, 40 and 41, Justice Galligan took the following approach:
38. There remains a matter which must be addressed. The major ground of this appeal was that not only was the Appeal Board biased, but that it was capricious and dishonest. That is a very serious allegation to make. Other than alleging the acceptance of bribes, there is probably no more serious allegation that can be made against a person or persons who carry out judicial functions. Objectivity, judiciousness and honesty are the very fundamentals of the judicial function. Without any one of them it is unacceptable. Apart from the slur that these unfounded allegations are on the judicial function, they are grossly insulting to and defame the honour of those persons who comprised the Appeal Board in this case.
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40. Dr. Chin may be chagrined because an independent tribunal concluded that his application to the medical staff of this hospital was not as meritorious as two others, and concluded that because of his character traits he was not as suitable an applicant as were those others. His failure to succeed does not mean that those who decided against him were biased, capricious or dishonest. His complaints seem to me to be the worst kind of whining by a poor loser. If in his fit of pique he decides to scurrilously accuse as biased, capricious and dishonest persons charged with a public responsibility of being fair, judicious and honest, he cannot expect to do so with impunity simply because the allegations are made within the scope of a judicial proceeding. As a penalty to him for making groundless allegations of bias, capriciousness and dishonesty, I propose to award the respondent its costs, of this appeal on a solicitor and client scale. This order of costs may serve, as well, as a deterrent to others who may contemplate making groundless allegations of bias, capriciousness or dishonesty against a person or persons who are charged with the performance of judicial functions.
41. If there are reasonable grounds for making such allegations then of course they ought to be advanced fearlessly. This order of costs is not intended to dissuade a person with well-founded reasons from attacking a tribunal which is biased, capricious or dishonest. However, in my opinion, the making of groundless allegations of that sort is reprehensible.
[77] While I accept that the seriousness of the conduct in Bias Motion is sufficient to justify costs to the Interveners on a solicitor and client scale, the issue for the Court at this point in the argument is whether the Court should accept a submission for costs based upon objectively reasonable hourly rates rather than the amounts actually billed and paid. In Lynnview, Madam Justice Hunt of the Alberta Court of Appeal, pointed out that "Generally, the resources of interveners should not be taken into account in determining whether or not they are entitled to costs: B. (R.) v. Children's Aid Society of Metropolitan Toronto, per Justice L'Heureux-Dubé at para. 161."
[78] The Interveners point out that British Columbia and Ontario Courts have ruled that a litigant's funding arrangements are irrelevant and need not be disclosed on an application for costs, and refer the Court to the decisions in Rohani v. Rohani, 2003 BCSC 1500 (B.C.S.C.) and Ramcharitar v. Ramcharitar (2002), 62 O.R. (3d) 107 (Ont. Sup. Ct.). They also point to other cases that have held that even where a court is aware of the details of special funding arrangements, those arrangements should not be considered in assessing costs. See: Rogers v. Sudbury (Administrator of Ontario Works) (2001), 57 O.R. (3d) 467 (Ont. Sup. Ct.); Young v. Toronto Star Newspapers Ltd., [2003] O.J. No. 5092; Fullerton v. Matsqui (District) (1992), 74 B.C.L.R. (2d) 311, 12 C.P.C. (3d) 319, 19 B.C.A.C. 284, 34 W.A.C. 284; and Skidmore v. Blackmore 2 B.C.L.R. (3d) 201, [1995] 4 W.W.R. 524, (1995) 122 D.L.R. (4th) 330, 35 C.P.C. (3d) 28, 27 C.P.R. (2d) 77, 55 B.C.A.C. 191, 90 W.A.C. 191. I note that Skidmore was considered by Justice LeBel in Okanagan.
[79] The words of Registrar Blok in Rohani (a case where solicitor and client costs were awarded) at paras. 31-32 appear to affirm the Interveners position on objective assessment:
31. I am persuaded by the authorities cited by the plaintiff that special costs are costs that go beyond indemnity and that they are to be assessed objectively without regard to actual legal costs incurred. As stated by Bouck J. in Bradshaw Construction Ltd. v. Bank of Nova Scotia, at paragraph 27:
Instead, special costs are the fees that a reasonable client would pay a reasonably competent solicitor for performing the work described in the bill.
32. Therefore, just as evidence of actual legal fees incurred cannot be used by a party to argue for an enhanced assessment of special costs, so too evidence of that sort cannot be used to limit that assessment. The evidence is simply irrelevant.
[80] In Ramcharitar, Justice Wein was dealing with the significance of a legal aid scheme for the calculation of costs, but I believe the following guidance from that case is helpful in the present proceedings where an Order of Prothonotary Giles made on April 27, 2000 establishes that "the contracts between NWAC and the Court Challengers Program of Canada, and between NWAC and the Department of Indian Affairs Test Case Funding Program are the subject of solicitor client privilege, and this privilege has not been waived":
10. In O'Sullivan v. Lindley, [2000] O.J. No. 3965 (Ont. C.J. [In Chambers]), the Court held that the assessment of costs should be made without regard to the litigant's receipt of Legal Aid.
The case law is quite clear that when assessing costs the Court must function as if it is totally ignorant of the fact the litigant may be legally aided.
The Court went further and considered that:
Where the existence of a Legal Aid certificate has been disclosed, it is improper to infuse deliberations on costs with discussions about the Legal Aid certificate.
¼
26. The Legal Aid Act specifies, in s. 89, that all legal communications between Legal Aid Ontario and an applicant for Legal Aid Services are privileged in the same manner and to the same extent as solicitor/client communications. Section 90 of the Act prohibits the disclosure of such privileged information without the consent of the applicant.
27. It has been held that if the fact that a party is in receipt of legal aid funding is disclosed to the Court advertently or inadvertently, the Court has a duty to set aside the information in the adjudication of the costs issue: see O'Donnell v. O'Donnell, [1996] O.J. No. 2498 (Ont. Prov. Div.) and O'Sullivan v. Lindley (supra). Accordingly, Legal Aid Ontario cannot disclose any information or documentation provided without the client's consent. It follows that a court ought not to order Legal Aid to disclose such documentation.
¼
29. In the circumstances of a legally aided client, since costs should be assessed as if Legal Aid had not been applicable, there is no need for any fee arrangement between the client and Legal Aid Ontario to be disclosed, and no basis upon which the statutory extension of the solicitor/client privilege granted by the Legal Aid Act should be overridden.
30. Accordingly, the Plaintiff will submit a Bill of Costs that indicates the total amount of fees billed at the solicitor's normal rate.
[81] In resisting this line of argument and authority, the Plaintiffs have drawn the Court's attention to a cluster of cases which suggest that funding arrangements are not an irrelevant factor and should be taken into account when a Court awards costs. These cases are Lawyers' Professional Indemnity Co. v. Geto Investments Ltd., [2002] O.J. No. 921 (S.C.J.); TransCanada Pipelines Ltd. v. Potter Station Power Limited Partnership, [2003] O.J. No. 2440 (C.A.); and Stellarbridge Management Inc. v. Magna International (Canada) Inc., [2004] O.J. No. 2102 (C.A.); and Ross v. Welsh, [2003] O.J. No. 4659 (S.C.J.).
[82] The Court notes, however, that this line of cases is concerned with "indemnity" in party and party situations. The courts involved are concerned to effect an indemnity, or a partial indemnity, for amounts actually expended. They are not focused upon using costs as a sanction, where other principles apply. In my view, then, these cases provide little guidance in a situation where the Court has decided that solicitor and client, or elevated costs, are warranted as a sanction.
[83] The Plaintiffs also say that Taxing Officer Stinson of this Court has cast doubt upon the "cost beyond indemnity" principle in Fullerton in Byers Transport Ltd. v. Kosanovich, [1996] F.C.J. No. 760 (T.D. Tax Off. at para. 24).
[84] As regards the use of costs as a sanction, I am bound and guided by the Supreme Court of Canada in Okanagan above. As regards the use of an objective assessment, I do not believe that Taxing Officer Stinson was asked to deal with that problem in Byers, and I do not regard anything he said there as applicable to that issue.
[85] All in all, I believe the Interveners' authorities on this point are persuasive and should carry the day. But over and above this, I believe that the use of an objective assessment is appropriate to the facts of the present case and the objectives of the Court in awarding and setting costs in favour of the Interveners.
[86] In a situation where the Court feels that a sanction is necessary to acknowledge contemptuous, outrageous and highly wasteful conduct and to discourage any repetition in the future, hourly rates that are below what is usual and reasonable for counsel concerned, and test case funding arrangements that are established to serve a public need, would not, if allowed to mitigate the cost awards in this case, allow the appropriate message that the Court needs to send to the Plaintiffs.
[87] In addition, on the facts of this case, actual amounts paid and billed, do not reflect the totally unjustifiable waste, disruption and financial impact that the Bias Motion has had upon the Interveners, their legal counsel and the public purse. That kind of unnecessary waste by litigants, who have been repeatedly warned to mend their ways, must be discouraged and, in the context of these proceedings, where an enormous amount of work and Court time is still necessary before the trial can begin, a significant sanction, assessed objectively, is the only practical tool available to the Court.
[88] The basic rationale offered by the Plaintiffs as to why the Interveners' suggestions for costs are excessive and unreasonable is that "the Crown effectively responded to the bias motion and the Crown's entitlement to costs is not before the Court." I have already made it clear why I cannot accept this position and why I do not believe that, as the Plaintiffs allege "the only conduct found by this Court to have occurred in the context of the bias motion which is specifically referable to the Interveners as distinguished from the Crown were allegations of misconduct against Interveners counsel." I specifically found in the Bias Motion itself that the Plaintiffs mounted a "groundless and unwarranted" attack upon the Federal Court and specific judges that, at its broadest, would have rendered everything "wide open," so that the parties, and this includes the Interveners "would have to begin again the tortuous path of confronting pleadings, evidence, discoveries, and, indeed, everything that has transpired since 1997." The Plaintiffs do not authoritatively challenge these findings so that, for purposes of the present costs motions, they must stand. So must my findings that "the questionable practices, excesses and prolixities on full display in these materials necessitate an inordinate amount of time on the part of other counsel and the Court to correct them, and seriously impede the progress of these proceedings. These matters will obviously have to be taken into account when costs are considered."
[89] The Plaintiffs went beyond their written argument at the oral hearing for these costs motions and, in addition to the above, suggested other factors that the Court should take into account in setting costs and in not allowing the Interveners the amounts claimed in their draft bills of cost. However, the additional grounds are all related to the Plaintiffs' basic theme that the interests of the Interveners were only narrowly engaged by the Bias Motion and the Crown's response was the only real one required.
(i) Duplication
[90] Throughout their written and oral presentations there are suggestions by the Plaintiffs that the Crown effectively responded to the Bias Motion and that the response of the Interveners was somehow unnecessary, or at least involved significant duplication for which the Plaintiffs should not be made responsible in costs.
[91] From time to time the Court has certainly made it clear that Intervener participation in these proceedings must be commensurate with Intervener interests and must avoid duplication.
[92] Since my involvement at least, the Interveners have been careful to stay within the parameters set by the Court. Their preparation for, and participation in, the Bias Motion was no exception. Had this not been the case, I am sure Mr. Shibley would have raised the matter with the Court and, even if he did not, the Court would have pointed out any problems that it perceived in this regard at the time. The notice of motion for the Bias Motion encompassed the Interveners as well as the Crown and there was no attempt by counsel for the Plaintiffs to limit Intervener participation in any way; and for good reason, because fundamental issues of direct concern to the Interveners were raised.
[93] The transcript of the Bias Hearing makes it very clear that Mr. Shibley was firmly of the view that the Crown's response contained "very little" that addressed the merits of the Plaintiffs case and that, on the day, he found himself scrambling to answer the responses of the Interveners. The reason he was left scrambling was because he did not know the record. He readily admitted this, and that he was totally reliant upon Ms. Twinn and Mr. Healey for his knowledge of what had transpired in the proceedings to that time. They were not objective or reliable observers. Consequently, Mr. Shibley was caught off guard when the record was brought to his attention on various important issues by respective counsel for the Interveners. He should not have relied upon Ms. Twinn and Mr. Healey in the way he did. He told the Court to read the record, but he neglected to do so himself. This was not the fault of the Interveners who countered his arguments and brought to his attention that what he had said could not be reconciled with the record, and that there were serious evidentiary problems inherent in the Plaintiffs' materials that he had failed to deal with.
[94] I did not share Mr. Shibley's assessment of the Crown's response, but he was certainly correct in his acknowledgment that the Interveners had their own arguments and positions that were articulated and elaborated in a forceful way at the hearing of the Bias Motion and in their written materials, and that greatly assisted the Court in reaching the conclusions set forth in the May 3, 2005 decision.
[95] Of course, when putting together written materials and oral argument of the kind used by the Interveners in the Bias Motion, there is a need to point out similarities and common ground, but this does not mean that there was material duplication.
[96] As regards the connection between the response of the Interveners and their respective interests in this law suit, I have already pointed out that the way the Plaintiffs chose to frame the Bias Motion compelled the Interveners to mount a comprehensive and vigorous response to protect their interests and to ensure that the hard work that had gone into defining their status and role, and in the preparation they had undertaken, was not lost through the success of a collateral attack on Court orders and directions that directly affected their interests. The Plaintiffs should have anticipated that response and should not now, when costs are being assessed, allege that it was unnecessary or duplicated anything the Crown did. This is just not the case.
[97] But there is another important factor that the Plaintiffs are leaving out of account when they complain that the Interveners' response was duplicative and went beyond what was necessary. The Plaintiffs chose to conduct the Bias Motion in a very odd way. They were given significant extensions of time to prepare and file written argument and supporting materials. But on the day of the hearing, Mr. Shibley gave an oral presentation that differed from the written argument in many significant ways. In other words, the Crown and the Interveners did not know the full extent of what they had to face until they heard Mr. Shibley at the hearing. He complained that he was hearing things from the Interveners that he had not anticipated. But the fact is that no one could have anticipated the nature and extent of Mr. Shibley's presentation because it was not revealed except in the delivery and all opposing counsel were left to respond as best they could on the day. Opposing counsel did not know what Mr. Shibley would argue, or what he would change from the written presentation: he withdrew some points; he adjusted the relief sought; and his approach and emphasis were totally different from what had been indicated in the Plaintiffs' written submissions. At the conclusion of his presentation he referred the Court to the Plaintiffs' written brief as though it were some kind of adjunct to the written arguments and the points he had made orally. He said he had found it helpful, but it was clearly different from what he had brought before the Court. By taking such an approach, the Plaintiffs had to know that the Crown and the Interveners would have to do extensive work and be ready to answer anything Mr. Shibley would say at the hearing. Had the Plaintiffs clearly indicated beforehand the points they would rely upon, they could have saved opposing counsel a lot of work. But the way in which they proceeded meant that all opposing counsel had to know the whole record, because there was no real way to anticipate how the Plaintiffs would adjust their argument from what was contained in the written materials. So if the Plaintiffs felt justified in using Mr. Shibley to present his own interpretation at the hearing, they should not now complain about the way opposing counsel had to deal with that plan of attack, or the amount of preparation needed by all opposing counsel to be ready to deal with it.
[98] The fact that NCC made no written or oral submissions for the Bias Motion makes it clear that the Interveners as a group marshaled their resources and their arguments and did not make submissions that added nothing to what others had to say.
[99] Mr. Molstad is, of course, correct to raise the issues of unnecessary duplication and waste as matters that must always concern the Court when considering costs. I agree with him that, even when applying a sanction, there have to be limits and the Court should not just rubber stamp any cost claim that the Interveners might make. But I believe that the particulars of the present situation tell heavily against the Plaintiffs in this regard.
[100] It was the Plaintiffs who chose to frame the Bias Motion in the way they did. They asked for, and asserted grounds to justify, extraordinary relief, including a transfer of the proceedings "to the Alberta Court (Queen's Bench)." They did not say in their motion, or in their written or oral submissions, that if the relief requested was granted, Court orders would remain valid and the status and role of the Interveners would not change.
[101] It was within the power of the Plaintiffs - and no one else - to make clear precisely what they found acceptable in previous orders and what they did not. But they framed their motion and supporting materials in such a way that everything that had occurred in the proceedings to the time of the Bias Motion would be vitiated or open to question.
[102] What is more, in the way they framed the motion, the written materials and their arguments, they did everything to ensure that the Crown and the Interveners would be put to the maximum amount of trouble and expense to correct the distortions, gaps and obfuscations that were an essential aspect of their sweeping attack on the proceedings and extant Court orders. The Plaintiffs chose to mount the Bias Motion in such a way that all progress towards trial was halted, and all opposing legal counsel were placed in limbo as far as their schedules were concerned.
[103] They now say there was duplication and waste on the other side and that the Crown could have answered everything of real substance, and the Interveners should not have participated to the extent they did. I find such an assertion entirely unacceptable on the facts of this case, and such an argument is particularly unpalatable when made by Plaintiffs who went out of their way to frame and conduct the Bias Motion in a manner that required maximum effort and expense from the Crown and the Interveners to meet the challenges of the relief sort (and its consequences), as well as the difficulties inherent in a voluminous written argument (and an adjusted oral argument), that totally disregarded the record in favour of self-serving revisionism and outright misrepresentation.
(ii) Intervener and Crown Positions
[104] Mr. Molstad made much in his argument of the view that the Crown and the Interveners ultimately occupy the same position in this law suit because they all want to resist the Plaintiffs' constitutional challenge to Bill C-31. He says that "in any matter involving an Intervener's application for costs in this action ¼ this Court should be aware that the Intervener's ultimate position is the same as the position of the Crown." In this regard, Mr. Molstad draws my attention to rule 400(3)(l).
[105] But this argument really ignores some very significant factors:
(a) Court decisions have already recognized that the Interveners bring a different perspective to these proceedings from that of the Crown. If the Interveners added nothing to what the Crown can offer the Court they would not have been given intervener status;
(b) The Court has consistently recognized that the Interveners bring something in addition to the Crown by awarding them costs in successive motions (on a separate basis). The Federal Court of Appeal has consistently done likewise;
(c) In deciding whether the Interveners should participate in this law suit, the fact that their positions support the Crown's objectives in preserving the impugned legislation is not the point. They participate to assist the Court with their separate perspectives;
(d) My decision of May 3, 2005 makes it very clear that the Interveners were extremely helpful to the Court in ways that went beyond the Crown's submissions;
(e) Mr. Shibley, who represented the Plaintiffs on the Bias Motion, certainly recognized and acknowledged that what he got from the Interveners was not what he got from the Crown.
[106] So this point adds little to the duplication arguments raised by the Plaintiffs. The fact that, in the main action, the Interveners wish to resist the Plaintiffs' constitutional challenge to Bill C-31, as does the Crown, is not really a separate issue in these motions. They have been granted intervener status to assist the Court. If the Bias Motion had been successful, that status would have been jeopardized. They could have lost the right to bring their several perspectives, and the direct interests of those they represent, before the Court. That is why they had to respond to the Bias Motion in the way they did.
(iii) Five Sets of Costs
[107] Mr. Molstad says that "it is inherently unfair to require the Plaintiffs to pay five sets of costs for - to interveners who they [the Plaintiffs] have not named as parties in relation to interlocutory matters before trial as a general principle ¼" In other words, the Plaintiffs "don't get five sets of costs" if they succeed on a motion; so they "shouldn't pay five sets of costs" when they fail.
[108] There are several issues rolled into this assertion, but I believe that Mr. Molstad's hypothetical point about different treatment on costs is the important one. The importance of the Bias Motion and its potential consequences can be minimized by calling it "merely interlocutory," but I believe that all participants were aware of what was at stake in the way I have already described it.
[109] To begin with, the hypothetical argument bears no relationship to the facts and the reality in this case. The Court has not had to consider a situation where an Intervener, or the Interveners, have brought a motion against the Plaintiffs that is entirely groundless and unwarranted and that is tainted by the other aggravating factors in this case. So until I have a fact situation and full legal argument and authorities before me on this point, I cannot say what the Plaintiffs would be entitled to in such a situation.
[110] The general rule that a party granted intervener status in the public interest is neither entitled to, nor liable for, costs was articulated by Justice L'Heureux-Dubé, in dissent, in B. (R) v. Children's Aid Society of Metropolitan Toronto (1995), 122 D.L.R. (4th) 1 (S.C.C.). My understanding of the rationale behind this principle is that because intervention is offered and expected to assist the court, interveners should not be in jeopardy of a costs order for having voluntarily offered their assistance.
[111] However, as in the present case, it is clear that circumstances can arise where deviation from this general rule is appropriate. For example, as was the case in Lavigne v. Ontario Public Service Employees Union (1991), 81 D.L.R. (4th) 545, where a party intervenes in the public interest but is seriously affected by the result, more so than other members of the public, costs may be awarded to or against that intervener. Also, where an entity intervenes for the protection of its own interest, or purports to act in the public interest but does not act solely in that interest, costs may be awarded against that intervener (see John Doe v. Ontario (Information and Privacy Commissioner) (1991), 87 D.L.R. (4th) 348).
[112] And finally, the Federal Court of Appeal in these proceedings has seen fit to award separate costs to the Interveners. If the Federal Court of Appeal believes that separate Intervener costs are warranted in appropriate circumstances, then I do not see why I should not consider them in the present motions where the facts require an effective sanction to discourage the Plaintiffs from any repetition of the distortions and excesses manifest in the Bias Motion, and where the nature of the Intervener's response was made necessary by the nature of the Plaintiffs' attack upon the proceedings.
(iv) Interlocutory Issue
[113] Mr. Molstad also feels that the Court should take into account the fact that the Bias Motion was "an interlocutory issue that was being dealt with before trial." I see this as an attempt to minimize the importance of the Bias Motion and its consequences, and I have already dealt with that.
[114] But I also think Mr. Molstad is saying that the Bias Motion "had nothing to do with the perspective of any one of the interveners as set out in their statement of intervention."
[115] I think I have already said enough to explain why I feel that, in the Bias Motion, the status and perspective of the Interveners were engaged in a way that required a full and vigorous response from each Intervener.
[116] As I made clear in my May 3, 2005 decision, which is not challenged by the Plaintiffs, the Bias Motion was a collateral attack on Court Orders and directions that, if successful, would have had a broad and detrimental impact upon the position of the Interveners in these proceedings.
[117] For example, the Plaintiffs asked me to find that Justice Hugessen had shown a reasonable apprehension of bias in his role as case management judge. Had I so found, all of Justice Hugessen's orders and directions would have been open to question. And it was Justice Hugessen who granted NWAC intervener status. So the implications for NWAC of a successful Bias Motion were fundamental to NWAC's intervener status, quite apart from other matters of concern such as the injunction granted by Justice Hugessen to protect the position of NWAC's members.
[118] The Plaintiffs also alleged in the Bias Motion systemic bias within the Federal Court and asked for "an Order whereby this Court consents to a transfer of these proceedings to the Alberta Court (Queen's Bench)." Had such an order been granted, it is at least arguable that even Justice McNair's Order of September 14, 1989, granting the Interveners other than NWAC status would have lost its authority.
[119] Besides these fundamental status issues, the Bias Motion, if successful would have meant, at its very narrowest, that my Orders dealing with Intervener participation would have ceased to apply. And there are many orders and directions made by me and Justice Hugessen that impact upon the status and role of the Interveners in these proceedings. All of this was at stake for the Interveners.
[120] For the Plaintiffs to now say that the Bias Motion had nothing to do "with the perspective of any one of the interveners," and was a mere interlocutory motion, is just asking the Court to ignore the fact that a successful Bias Motion could have meant an end to the Interveners' right to present any "perspective," as that right has been defined by successive Court orders.
(v) Collecting Costs For the Crown
[121] One aspect of the Plaintiffs' unfairness and duplication argument is that granting separate costs to the Interveners means, in fact, awarding costs to "five participants who are attempting to collect costs for the Crown" in a position where "the positions are effectively the same ¼." This argument does not seem to have been persuasive either with this Court or the Federal Court of Appeal on other occasions.
[122] This argument also overlaps with previous arguments of the Plaintiffs, and the Court's view is that the positions of the Crown and the Interveners were not effectively the same in the Bias Motion; the fact that the Interveners have status as such means that the Court has already found that they bring additional perspectives to assist the Court. In addition, of course, this Court and the Federal Court of Appeal have consistently awarded costs to the Interveners. This is all quite apart from the issue of whether the Court should even look at the Intervener's funding arrangements in deciding costs in this case, which I address elsewhere.
[123] The Plaintiffs say that NCC "didn't do anything." Even allowing for the rhetorical exaggeration, I believe the Plaintiffs want the Court to note that NCC "didn't file a brief, they didn't participate in cross-examinations on the affidavits, and they didn't participate at the hearing."
[124] I believe that the bill of costs presented by NCC reflects these factors very well. But I have to disagree with the Plaintiffs when they say that NCC "didn't do anything."
[125] NCC did what the Plaintiffs' Bias Motion compelled them to do, and my reading of their draft bill of costs suggests to me that they did it in a fair and efficient way. NCC is not asking for solicitor client costs. They are only asking for party-and-party costs on the basis of Column III of Tariff B, and for an order directing that the costs award include first counsel's travel and accommodation costs.
[126] I have already made it clear that the Bias Motion placed the status of each Intervener under threat and was framed to ensure that the Crown and the Interveners had to review and assess an extensive record to answer the distortions and misrepresentations contained in the Plaintiffs' materials.
[127] In addition, of course, the Plaintiffs changed their argument to a significant extent at the oral hearing. They are now suggesting that NCC should not have reviewed and assessed the record, and should not have had counsel in attendance to hear arguments that no one could fully anticipate until after Mr. Shibley had delivered them. If the Plaintiffs want to proceed in this manner, they should not complain about NCC having a lawyer on hand to hear what might be said and advise NCC accordingly.
[128] Ms. Eberts was the only lawyer who conducted cross-examinations of the lay witnesses, so that duplication and unnecessary costs could be avoided. And the fact that NCC did not file a written brief or make an oral presentation is clear evidence to me that the Interveners took pains, wherever possible, not to duplicate their efforts.
(vii) Cross-Examination on Affidavits
[129] The Plaintiffs complain about the number of lawyers who were at the cross-examinations of Ms. Twinn and Mr. Healey:
So my tally is eight lawyers, I think, including the outside counsel for the cross-examination on affidavits that were ultimately found to be inadmissible. We submit that this goes beyond not being reasonable. This starts to enter into the realm of ridiculous.
[130] The word "ridiculous" also occurs to me, but not in relation to the Interveners. What was ridiculous about this situation was that the Plaintiffs set up a situation on the Bias Motion through their broad and unsubstantiated allegations that required the presence of so many counsel at the cross-examinations.
[131] To begin with, the fact that the affidavits were ultimately found to be admissible is irrelevant. This is akin to asking the Court to take into account the fact that the Interveners should have guessed what the Court would ultimately do with those affidavits. It is, perhaps relatively easy for Mr. Molstad, reviewing those affidavits in retrospect, to conclude that no Court could possibly have admitted them, but I think the Interveners should not be faulted for proceeding on the basis that it is not wise to assume that a Court will make a decision before it is made.
[132] In addition, the Plaintiffs are now complaining about something that they were entirely responsible for and could easily have avoided.
[133] As regards NSIAA, as Mr. Molstad has conceded, Mr. Millard attended the cross-examination, but Mr. Donaldson did not. Also, outside counsel had to be engaged because Mr. Healey swore in his affidavit that Mr. Donaldson had misled the Court, and Ms. Twinn repeated that allegation and adopted it.
[134] This is an allegation the Court had already found to be groundless and for which Mr. Healey had been reprimanded. Yet he went on to repeat it under oath and Ms. Twinn supported him. So it was reasonable to engage outside counsel to examine Ms. Twinn and Mr. Healey because it would have been inappropriate for Mr. Donaldson, or anyone from his firm, to have done so. No one compelled Mr. Healey and Ms. Twinn to repeat under oath accusations the Court had already found groundless and told them not to repeat.
[135] Mr. Faulds, the lawyer for NCC(A) was in the same position. In fact, Mr. Donaldson and Mr. Faulds retained Mr. Corbett, the same outside counsel, and shared the cost. The cross-examination conducted by Mr. Corbett addressed different issues from what the Crown had addressed in its cross-examination. None of this would have been necessary if groundless allegations of misconduct had not been made, and then repeated under oath by Mr. Healey and Ms. Twinn. And, of course, Mr. Corbett could hardly be expected to attend the cross-examinations alone. He knew nothing about the whole background to these proceedings. He needed education and guidance to conduct the cross-examinations.
[136] Apart from the specific situations of Mr. Donaldson and Mr. Faulds - entirely a result of the conduct of Mr. Healey and Ms. Twinn - the affidavits of Mr. Healey and Ms. Twinn were the basis of the whole motion and hence, of vital concern to all of the Interveners.
[137] I can see nothing that the Plaintiffs have to complain of in this regard.
(viii) The Court Reporter
[138] The Plaintiffs now question the necessity of having a court reporter in attendance at the oral hearing of the Bias Motion, as well as the transcript charges that appear in the Interveners' bills of cost. These amount to claims, say the Plaintiffs, for the "transcript of oral argument of a motion where no evidence was adduced," and the Plaintiffs do not think this was reasonable.
[139] Once again, the Plaintiffs are now complaining about the cost of something for which they are largely responsible. It has become necessary in these proceedings to have a court reporter in attendance and to make a transcript of all conference telephone calls, in-person management meetings, and all motions because of the need to promote the orderly and efficient conduct of business and to supply an authoritative record to deal with the numerous disagreements between counsel over what may have transpired on previous occasions.
[140] But over and above this, the written materials to the Bias Motion make it clear that Mr. Healey and Ms. Twinn were not overly concerned with accuracy when reporting and commenting upon what may have been said at any particular time. Also, in the lead up to the Bias Motion and during the course of a telephone conference call, Mr. Healey let it be known that he would not be producing the whole of the relevant Court record for the Bias Motion. Everyone else understood the importance of a complete record in a motion where context is everything. Mr. Donaldson for NSIAA agreed to compile and produce that record. In retrospect, and bearing in mind what Mr. Healey and Ms. Twinn said under oath and in the written materials, it is more than obvious why an accurate and full record was needed.
[141] For the Plaintiffs to now complain that a transcript is not necessary in a motion where Mr. Healey and Ms. Twinn provided a distorted and revisionist account of the past record, and where an accurate account of the hearing was needed by counsel both for purposes of answering the Plaintiffs oral argument (heard for the first time at that hearing and with differences from the written argument) as well as for purposes of a future appeal, is extremely unfortunate, and it causes me to wonder just how serious the Plaintiffs are in questioning the proposed bills of cost put forward by the Interveners.
(ix) Lawyers in Attendance at the Hearing
[142] The Plaintiffs also complain about "essentially six lawyers in attendance at a motion to advance positions that could have been easily advanced by one and, in fact, we submit were, in fact, advanced by the Crown."
[143] Mr. Molstad is now taking a very different position from Mr. Shibley who was present and conducted the oral argument for the Bias Motion on behalf of the Plaintiffs. Mr. Shibley told the Court that the Crown had not answered the merits of the Plaintiffs motion and that he found himself having to deal with matters that were raised by the Interveners. Because he was present and conducted oral argument on behalf of the Plaintiffs, I think Mr. Shibley's view of this matter is to be preferred to that of Mr. Molstad.
[144] I have already made it clear why counsel for each Intervener had to be present at the hearing of the Bias Motion. The Interveners do not, and did not, present the same perspectives and go over the same ground as the Crown, and they did not duplicate each other except to make it clear where they agreed or disagreed. The record shows that, in acting as counsel for the Plaintiffs, Mr. Healey and Ms. Twinn were willing to misrepresent facts and legal authority, distort the record, and make accusations of misconduct against counsel for the Interveners. The written materials submitted for the Bias Motion were evidence that they were willing to do this under oath. They had already made accusations against opposing counsel in open Court and had been told to desist from such attacks. Mr. Shibley could not, as he surely would have had he been able, protect the Court and Counsel for the Interveners from these attacks and distortions because he did not know the record, and he was completely reliant upon Mr. Healey and Ms. Twinn for his knowledge of what had transpired. In the face of such a barrage of deliberate distortions and misrepresentations, any legal counsel for the Interveners who did not attend the Bias Motion would have been decidedly foolhardy. They would have taken a significant personal risk because of the willingness of Plaintiffs' counsel to attack the personal integrity of opposing counsel, and they would not have been properly representing their respective clients. What is more, in the face of the written submissions, the Court required their attendance. There was no telling what might be said, and there was no telling what the Plaintiffs might allege. If the trial judge was considered fair game, who among opposing counsel could possibly feel safe from attack?
[145] Once again, the Plaintiffs are merely refusing to accept responsibility for the way they conducted the Bias Motion and the way they set it up. No one knew entirely what Mr. Shibley would say until he said it, or how he would attempt to extricate the Plaintiffs from the obvious excesses and inadequacies of the written materials. The Bias Motion raised issues that affected, amongst many things, the fundamental standing of the Interveners in these proceedings. For the Interveners not to be present with their respective counsel on such an occasion to hear argument that had not been recorded in writing, would not have been wise. The presence of all counsel at the hearing for the Bias Motion was entirely reasonable and entirely necessary.
(x) The Offers to Settle
[146] Both sides in these motions attempted to settle the issue of costs and made "with prejudice" offers. Mr. Molstad says he did not want to bring the matter before the Court, but it is also obvious that the Interveners would have settled the matter out of Court if that had been possible.
[147] The Plaintiffs' offer did not really finalize anything because no figure was actually fixed and further Court action would have been necessary to review the reasonableness of their cost claims. In addition, the Plaintiffs' offer clearly sought to confine the costs to "indemnification." The Interveners took the position, reasonably in my view, that there is not much point to a settlement that does not establish the final figure and that requires the parties to go to Court anyway. The Interveners had nothing to gain from such an arrangement. If the Court is going to be reviewing matters, then it might as well take a look at the whole picture, particularly when the Plaintiffs take a very different approach conceptually to costs in this case and want "indemnity" to restrict any award.
[148] I regard the offers to settle as a completely neutral factor. Both sides, to their credit, tried to avoid this motion. But, for understandable reasons on both sides, that did not prove possible.
NSIAA
[149] NSIAA is seeking solicitor and client costs for the Bias Motion and has prepared and submitted a bill of costs for a total claim of $93,941.60.
[150] In the alternative, NSIAA submits that this case warrants at least a party and party bill of costs based upon 1.5 times Column V of Tariff B. This comes to a total of $76,532.70.
[151] The Plaintiffs do not dispute that some of the findings of the Court as set out in the May 3, 2005 decision dismissing the Bias Motion warrant solicitor and client costs to the Crown, but they do not think that the decision warrants solicitor and client costs to NSIAA except, perhaps, to address the specific allegations of misconduct that Mr. Healey made against Mr. Donaldson.
[152] In any event, the Plaintiffs believe that any award of costs to NSIAA should be based upon actual indemnity for the amounts billed and paid, and that the Court should review carefully itemized particulars for reasonableness.
[153] For reasons already given, I do not think that the Crown should be the only litigant entitled to claim solicitor and client costs in this case. The Interveners had direct interests in the outcome of the Bias Motion, and their written and oral responses were entirely reasonable and proportionate to the interests that were at stake. Those responses were what the Plaintiffs should have anticipated, and it was reprehensible, scandalous and outrageous for the Plaintiffs to put NSIAA and the other Interveners to the trouble of defending their interests in a motion that was groundless and unwarranted.
[154] In this particular case, the Court is required to go beyond strict indemnity considerations to ensure that the Plaintiffs' conduct is sanctioned and that they are sufficiently discouraged from similar conduct in the future and from disregarding Court orders.
[155] Solicitor and client costs for NSIAA are warranted in this case and, in calculating those costs, the fees should be the fees that a reasonable client would pay a reasonably competent solicitor for performing the work described on the bill and without regard to whatever test fee arrangements were in place.
[156] Using this objective approach, I have reviewed the solicitor and client bill of costs prepared and submitted by NSIAA and can find nothing in it that would cause me to question the reasonableness of the fees or the disbursements. I believe, therefore, that NSIAA has satisfied me of its case for solicitor and client costs calculated on an objective basis and should, accordingly, be paid $93,941.60 by the Plaintiffs forthwith and irrespective of the cause.
[157] NSIAA is also seeking costs in the amount of $1,500.00 for the Plaintiffs motion concerning Crown and Interveners will-says and that was disposed of by this Court in a decision dated November 18, 2005.
[158] NSIAA was wholly successful in the Plaintiffs' will-say motion. The Court could find no defect in its will-says and NSIAA should never have been named as a respondent on that motion. The Plaintiffs sought relief from NSIAA but did not even try to identify any deficiencies in NSIAA's will-says or explain why any relief was warranted. The Plaintiffs chose, as regards NSIAA's will-says, to compel NSIAA to waste time and resources in answering the motion in a way that was totally unnecessary.
[159] NSIAA requests a lump sum of $1,500.00 for the Plaintiffs' will-say motion, which figure represents a maximum of 11 units under Column V of Tariff B, plus a nominal amount for disbursements and G.S.T.
[160] The Plaintiffs say that there was nothing extraordinary or exceptional about the will-say motion of the Plaintiffs and it was not unreasonable or abusive. Consequently, they believe that NSIAA's costs for that motion ought to be assessed at the mid-range of Column III.
[161] I cannot agree with the Plaintiffs on this issue. There may have been nothing extraordinary about the Plaintiffs bringing a motion on will-says, but it should never have been brought against NSIAA, and that is the point. The Plaintiffs made NSIAA a party to the motion, but did not identify what problems they found with NSIAA's will-says. This was an unacceptable waste of NSIAA's time and resources that warrants an award of costs under Rule 400 (2) in the amount of $1,500.00, payable forthwith and in any event of the cause.
NCC(A)
[162] NCC(A) is seeking a lump sum award of costs calculated at 1.5 times the upper end of Column V of Tariff B of the Federal Court Rules, 1998.
[163] Besides the conduct issues already referred to above, NCC(A) also directs the Court to the considerations enumerated in Rule 400(3) of the Federal Court Rules, 1998.
[164] As regards those considerations, the Court agrees with NCCA as follows:
a) Results of Proceeding
i. The Bias Motion was dismissed in its entirety. The Court did not make a single finding in the Plaintiffs' favour;
b) Importance and Complexity of Issues
i. The allegations of apprehended bias raised by the Plaintiffs in the Bias Motion were of fundamental importance to the ongoing conduct of this litigation. Had the Bias Motion been successful, the case management and trial management Orders issued since the retrial was ordered could have been entirely vitiated, leaving all parties back at square one;
ii. The Plaintiffs simultaneously conducted a collateral attack on many of the most significant pre-trial and trial management Orders. To do so, they relied on a significant portion of the pleadings and proceedings in this already complex, twenty-year-old case;
iii. The sheer volume of the record relied upon by the Plaintiffs, combined with their frequently tortuous and distorted interpretations of it, made the Bias Motion and the response to it an unnecessarily complex undertaking;
c) Amount of Work Required
i. The Plaintiffs' reliance on such an extensive portion of the record of these proceedings necessitated a review of a vast amount of materials by the Interveners;
d) Improper, Vexatious, or Unnecessary
i. The materials filed by the Plaintiffs were confusing and obfuscatory. In some cases, they were just bewildering. The Court stated as follows:
The Plaintiffs' Memorandum of Argument presents a litany of allegations that goes on for almost 100 pages. It is not easy to decipher and no assistance was offered to the Court at the hearing by the Plaintiffs that would help in the process. The Court is merely left to make what it can of decontextualized quotations and accusations, highly subjective and skewed interpretations, attempts to re-argue untenable positions, and a great deal of what can only be called innuendo.
The net effect of this approach is to force upon the Court and the other parties the job of providing the full context needed to place the Plaintiffs' arguments in a perspective that will enable the reasonable person to assess them.
¼Notwithstanding all of this accommodation, the end result is confused and, at times, just plain baffling.
ii. In the final analysis, the Court felt that the deficiencies in the materials should be carefully considered when determining costs:
Finally, it also has to be stated clearly that the questionable practices, excesses and prolixities on full display in these materials necessitate an inordinate amount of time and effort on the part of other counsel and the Court to correct them, and seriously impede the progress of these proceedings. These matters will obviously have to be taken into account when costs are considered.
iii. The many problems and deficiencies with the Plaintiffs' materials constitute both improper and vexatious conduct, and lengthened the proceedings considerably and unnecessarily;
iv. The Plaintiffs made a number of allegations of misconduct against Intervener counsel, and against Mr. Faulds personally. These allegations were made in both the Plaintiffs' written submissions and in the evidence filed in support of the Bias Motion;
v. Because of those allegations, and because both the Solicitor and Counsel of Record for the Plaintiffs swore affidavits making these allegations themselves, it was necessary for the NCC(A) to retain outside counsel to conduct the cross-examination on the affidavits sworn by counsel for the Plaintiffs. This significantly added to the expense involved in opposing the Bias Motion;
vi. Upon a detailed review of the full record, the Court found that none of these allegations had any merit. These groundless accusations of professional misconduct were also improper and vexatious;
vii. On the matter of the affidavits sworn by the Solicitor and Counsel of Record for the Plaintiffs, the Court ultimately refused to admit them into evidence, noting that no leave had been sought or granted under Rule 82 and that Mr. Shibley had based his oral arguments solely on Mr. Healey's advice and written submissions;
viii. In the context of solicitor's affidavits, the Court also noted that it had previously warned the Plaintiffs that procedures not in compliance with the Rules were not acceptable;
ix. The NCC(A) and NSIAA were therefore unnecessarily put to the time and expense associated with challenging that evidence. The submission of evidence by the Solicitor and Counsel of Record was both improper and vexatious;
x. Where the Court finds that a party unnecessarily lengthened the duration of the proceedings or took any step in the proceeding that was improper or vexatious, the Court may exercise its discretion to award costs in excess of those set out in Tariff B of the Federal Court Rules:
Shibamoto & Co. v. Western Fish Producers Inc. (Trustee of) (1991), 48 F.T.R. 176 (T.D.), varied by [1992]F.C.J. No. 479 (C.A.) (costs award upheld)
Canada (Canadian Human Rights Commission) v. Canada 3000 Airlines Ltd. (re Nijjar), [1999] F.C.J. No. 955 T.D.)
NMH International Inc. v. F.C. Yachts Ltd., 2003 FCT 373
Apotex Inc. v. Merck & Co., 2005 FCA 24
xi. In Shibamoto, the Court commented on the defendants' conduct of the litigation as follows:
¼the approach taken by the defendants during [the] litigation, unnecessarily lengthened the duration of the proceedings. The Statement of Defence and the Amended Statement of Defence were lengthy, pleaded many extraneous issues, raised a number of immaterial points upon which no evidence was presented at trial and which had no reasonable promise of success¼
¼At the trial of the matter, vast amounts of time were spent on issues and arguments raised by the defendants in their defence and counterclaim for which no evidence was submitted in support¼
The most disturbing aspect of this case however, lay in the unproven and sweeping allegations put forth by the defendants in their defence and counterclaim claiming fraud, deceit and conspiracy on the part of the plaintiffs. Generally speaking, courts do not condone accusations of this nature being made when there is a void of evidence to sustain them¼
P. 10 (QL)
xii. To recognize the unnecessary expense to which the plaintiffs had been put in dealing with the defendants' conduct of the case, the Court in Shibamoto awarded increased fees for certain steps in the litigation, over and above the amounts set out in Tariff B. In addition to those increases, the Court then granted the plaintiffs a 50% increase in their bill of costs after the inclusion of the aforementioned increase;
xiii. In Apotex, the Court dismissed the appellant's appeal and, in considering costs, summarized the appellant's conduct, noting that
¼it is obvious, as both the motions judge and the Prothonotary found, that the appellant is merely trying to relitigate an issue that was conclusively decided by Justice MacKay's judgment¼
Para. 3
xiv. In Apotex, the respondent sought increased costs as a result of Apotex's conduct. The Court commented on the respondent's submissions as follows:
The respondents seek increased costs¼ They allege¼that the appellant's motions and appeals are unmeritorious, dilatory and improper. They contend that the appellant's allegations are unsubstantiated and wholly without merit. Finally, they submit that the appellant's attempts to persistently relitigate matters finally and conclusively decided against it are an abuse of the process of the Courts. We heard both parties on costs.
In our view, the respondents' complaint is not without foundations¼
¼
We are of the view that, in the circumstances of this case, the respondents should be substantially indemnified.
Paras. 14, 15 & 17
xv. The Court went on to grant the respondents a lump sum award of costs;
Para. 17
xvi. As in Shibamoto and Apotex, the Court's May 3, 2005 Reasons in these proceedings are replete with examples of the Plaintiffs' unnecessary, improper, and dilatory actions in the course of the Bias Motion;
xvii. In its conclusion on the merits, the Court noted that the Bias Motion was "groundless and unwarranted" and that it had
¼impeded the progress towards trial by almost four months. It has diverted the Court from the consideration of other important motions. It has put the other parties and the Court to a great deal of time and effort to counter allegations that are often no more than assertions based upon innuendo, or revisionist accounts that run directly against the grain of the record reviewed in its entirety.
Para. 608
xviii. In sum, the Bias Motion was entirely unsuccessful. It was prosecuted in a manner designed to obfuscate and conceal an objective, reasonable interpretation of the record. It sought sweeping relief that had the potential to fundamentally change the scope and intent of the lawsuit, and the positions of all participants. It necessitated a comprehensive and prolonged effort from all counsel to understand and respond to it. It attempted to collaterally attack or relitigate significant matters that were res judicata. It made groundless allegations of misconduct against counsel and the Court;
xix. All of these factors indicate that an escalated award of costs is merited.
[165] The NCC(A) has submitted a bill of costs for the Bias Motion calculated according to 1.5 times Column V for a total of $67,875.77. I have already made it clear that I believe the Plaintiffs' conduct in the Bias Motion justifies an award of solicitor and client costs, so it is difficult not to accept that an elevated award is not also appropriate.
[166] I have carefully reviewed the draft bill of costs and the objections raised by the Plaintiffs in their written materials and orally. I cannot agree with those objections. NCC(A) in my view has made out its case for elevated costs and is entitled to $67,875.77 payable forthwith and in any event of the cause.
[167] Like NCC(A), NWAC seeks a lump sum award of costs for the Bias Motion calculated in accordance with 1.5 times the high end of Column V of Tariff B and has submitted a bill of costs to this effect for a total of $68,914.93.
[168] Similar considerations come into play as in the case of NCC(A) and there is no reason to repeat them here. It is true that Ms. Eberts was not attacked personally in the same way that Mr. Donaldson and Mr. Faulds were attacked, but NWAC was compelled to defend its interests in a sweeping motion that was groundless and unwarranted.
[169] Having reviewed NWAC's bill of costs and the objections raised by the Plaintiffs in their written and oral arguments, the Court is of the view, for the reasons given above, that NWAC has established its claim for elevated costs and should receive $68,914.93 payable forthwith and in any event of the cause.
NCC
[170] NCC is seeking party and party costs assessed on the basis of Column III of Tariff B and directing that the award shall include first counsel's travel and accommodation costs.
[171] The Plaintiffs oppose an award of any costs to NCC on the grounds that NCC did not file a brief and did not participate in the hearing of the Bias Motion or in cross-examinations on the Plaintiffs' affidavits. The Plaintiffs say that NCC simply had a watching brief.
[172] I have already made it clear that the Bias Motion was so broad in its scope and so distortive of the record that it required all Interveners to assess their positions and assist the Court. At the very least, this involved reviewing a voluminous amount of material to develop a position on the Bias Motion and to determine whether written and oral submissions were required.
[173] The fact that NCC did not submit a written brief or make a full oral presentation does not mean that NCC had a mere watching brief. The NCC was merely acting in accordance with the directions of the Court in avoiding any duplication.
[174] The NCC's approach to the Bias Motion, and the proposed bill of costs submitted, are a clear indication that the Interveners as a group did coordinate their efforts in order to avoid duplication. But this does not mean that NCC was not put to considerable trouble, in a motion that was groundless and unwarranted, to review materials and develop a position that allowed it to avoid duplication.
[175] The complexity of the Bias Motion, the volume of material that had to be reviewed, the sheer bewildering inadequacy of the materials prepared and served by the Plaintiffs that required everyone else involved to do additional work, and all of the aggravating factors already identified above, justify the level of costs requested by NCC.
[176] Consequently, it is my view that NCC's bill of costs is reasonable and appropriate in the circumstances and should include first counsel's travel and accommodation costs as indicated.
ORDER
THIS COURT ORDERS that
1. NSIAA shall have solicitor and client costs against the Plaintiffs for the Bias Motion fixed at $93,941.60 in accordance with NSIAA's proposed bill of costs, payable forthwith and in any event of the cause;
2. NSIAA shall have costs fixed at $1,500.00 for the Plaintiffs' will-say motion disposed of by this Court on November 18, 2005, payable forthwith and in any event of the cause;
3. NCC(A) shall have costs against the Plaintiffs for the Bias Motion calculated at 1.5 times the upper end of Column V of Tariff B of the Federal Court Rules, 1998 in accordance with NCC(A)s proposed bill of costs and fixed at $67,875.77, payable forthwith and in any event of the cause;
4. NWAC shall have costs against the Plaintiffs for the Bias Motion calculated at 1.5 times the high end of Column V of Tariff B of the Federal Court Rules and fixed at $68,914.93, payable forthwith and in any event of the cause;
5. NCC shall have costs against the Plaintiffs for the Bias Motion calculated under Column III of Tariff B of the Federal Court Rules fixed at $18,013.31 in accordance with NCC's proposed bill of costs, including travel, accommodation and transportation, all payable forthwith and in any event of the cause.
6. As regards the costs of these motions, the parties shall have until June 30, 2006 to make any further submissions beyond those contained in their written materials, following which, unless counsel advises otherwise and the Court agrees, the Court will fix the costs for these motions.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-66-86-A
STYLE OF CAUSE: SAWRIDGE BAND v. HER MAJESTY THE QUEEN ET AL .
DOCKET: T-66-86-B
STYLE OF CAUSE: TSUU T NA FIRST NATION (formerly the Sarcee Indian Band) v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: February 8 and 9, 2006
APPEARANCES:
Catherine Twinn FOR PLAINTIFFS
Edward H. Molstad Q.C. FOR PLAINTIFFS
Nathan Whitling
Mary Eberts FOR INTERVENER
NATIVE WOMEN ASSOCIATION OF CANADA
Derek Cranna FOR INTERVENER
Karen Scott NATIVE COUNCIL OF CANADA (ALBERTA)
Michael Donaldson FOR INTERVENER
Laura Snowball NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Janet Hutchison FOR INTERVENER
NATIVE COUNCIL OF CANADA
Ryan Flewelling FOR INTERVENER
NATIVE COUNCIL OF CANADA
SOLICITORS OF RECORD:
Twinn Barristers and Solicitors FOR PLAINTIFFS
Slave Lake, Alberta
Parlee McLaws LLP FOR PLAINTIFFS
Edmonton, Alberta
John H. Sims, QC FOR DEFENDANTS
Deputy Attorney General of Canada
Law Office of Mary Eberts FOR INTERVENER
Toronto, Ontario NATIVE WOMEN ASSOCIATION OF CANADA
Field LLP FOR INTERVENER
Edmonton, Alberta NATIVE COUNCIL OF CANADA (ALBERTA)
Burnet Duckworth & Palmer LLP FOR INTERVENER
Calgary, Alberta NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Chamberlain Hutchison FOR INTERVENER
Edmonton, Alberta NATIVE COUNCIL OF CANADA
Barrister & Solicitor FOR INTERVENER
Ottawa, Ontario NATIVE COUNCIL OF CANADA