Date: 20000713
Docket: T-906-99
Ottawa, Ontario, this 13th day of July 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
INVERHURON & DISTRICT RATEPAYERS" ASSOCIATION
Applicant
- and -
THE MINISTER OF THE ENVIRONMENT,
THE MINISTER OF FISHERIES AND OCEANS,
THE ATOMIC ENERGY CONTROL BOARD and
ONTARIO POWER GENERATION INCORPORATED
Respondents
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] On January 5, 2000, I heard the Motion for Leave to file the affidavit of Dr. Hoel (the Motion). The Motion had initially been made returnable the day the application for judicial review was to be heard but the date was advanced to permit a disposition of the Motion prior to the hearing date. The application for judicial review sought to set aside a ministerial decision permitting the development of a dry storage facility at the Bruce Nuclear power complex.
[2] I dismissed the Motion for reasons which were delivered in writing. I deferred the question of costs until the results of the application were known. The application has also been dismissed. The costs of the Motion have now become an issue.
[3] The respondents seek the costs of the Motion, including the travel costs associated with the hearing of the Motion, and with cross-examinations of various deponents. The basis of this request is that the Motion was made late in the day notwithstanding the fact that the matter had been case managed for a considerable period of time. Furthermore, the issue with respect to which the affidavit was tendered was identified early in the proceedings and Dr. Hoel"s evidence could have been obtained earlier, had the applicant thought to do so.
[4] The applicant says that it is a volunteer organization of limited means with no paid staff. It says that hardship would result from an order of costs as further fund raising would have to be undertaken. One of the objectives of the Canadian Environmental Assessment Act is public input into the process, an objective which is defeated if advocacy groups have to worry about cost awards against them. Given that Ontario Power Generation was added as a party on its own Motion and took no position which differed from that of the Federal respondents, it ought not to be awarded costs.
[5] It is important to note that the issue in this application is the question of the costs of the Motion and not the costs of the application. Some of the considerations raised by the applicants are more relevant to the issue of the costs of the application than they are to the costs of the Motion.
[6] The premise upon which the Motion was made returnable at the date fixed for the hearing of the application for judicial review was flawed. Rule 360 provides that no Notice of Motion may be filed unless it is expressly made returnable at the sittings fixed by the Court, pursuant to Rule 34, or at a special date fixed by the judicial administrator, pursuant to Rule 35(2), or is made in writing, pursuant to Rule 369. There is no basis upon which counsel can impose upon a judge the obligation to hear a Motion, simply because counsel knows that he or she will be the presiding judge at a given time and place. The proper course is to raise the matter with the Case Management Judge, if one has been appointed, or to make application to the judicial administrator for a hearing date.
[7] This is relevant to the matter of costs because, had the Rules been followed, much of the urgency generated by the Notice of Motion might have been avoided by the intervention of the Case Management Judge or the office of the judicial administrator/Associate Chief Justice. More fundamentally, the issue ought to have been raised earlier in the course of the case management process, where it could have been dealt with in the ordinary course of moving the matter forward. All of which is to say that the expense associated with the Motion may have been avoidable in whole or in part. Certainly, the last minute scrambling ought to have been avoided.
[8] Rule 400 of the Federal Court Rules, 1998 sets out the factors which a judge may consider when dealing with the question of costs. One of those considerations is whether any step in a proceeding was improper, vexatious or unnecessary. While the Motion in question here was neither improper or vexatious, it ought not to have been brought at the time and in the manner it was. For that reason, I am prepared to make an award of costs in favour of Ontario Power Generation and other respondents, though the latter shall have only one bill of costs between them.
[9] The claim for travel expenses for the hearing of the Motion and the cross-examination is also allowed but only to the extent of reasonable travel expenses.
ORDER
For the reasons set out above, it is hereby ordered that Ontario Power Generation is awarded the costs of the Motion for leave to file the affidavit of Dr. Hoel on Column 5 of the Tariff. Ontario Power Generation"s costs shall include Item 24 of Tariff B, as well as reasonable travel costs with respect to the hearing of the Motion and the cross-examination on affidavits.
It is further ordered that The Minister of the Environment, The Minister of Fisheries and Oceans, the Atomic Energy Control Board shall be awarded one bill of costs on Column 5 between them with respect to the Motion for Leave to file the affidavit of Dr. Hoel. These respondents" costs shall include Item 24 of Tariff B, as well as reasonable travel costs with respect to the cross-examination on affidavits.
"J.D. Denis Pelletier"
Judge