Docket: T-1283-03
Citation: 2004 FC 1306
Toronto, Ontario, September 23rd, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
BRUNICO COMMUNICATIONS INC.
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a business communications company which owns two national bi-weekly publications, Strategy and Playback. In March 2004 this Court heard an application for judicial review of a decision of the Canadian Magazine Fund not to grant funding to two publications published by the Applicant. Two applications for judicial review were consolidated into one. In a judgment released April 30, 2004, the Court found in favour of the Applicant and ordered costs on the application.
[2] The Applicant has now brought a motion for a lump sum costs award of $45,000.00 (representing approximately 50% of the actual costs and disbursements expended in this matter) or, in the alternative, for an order that costs be awarded in accordance with an assessment under Column V of Tariff B and that travel expenses and computer research costs be allowed.
[3] Both sides agree that this is a case for a lump sum award relying on Barzalex Inc. v. EBN Al Waleed (The ), [1999] F.C.J. No. 2002, para 11.
[4] The Applicant advances Rule 400(3) and relies on the following three categories which the Court may consider when exercising its discretion over the amount of costs:
1. Result (result of the proceeding and apportionment of liability);
2. Importance and complexity of the issues (including the amount of work and whether the public interest in having a proceeding litigated justifies the particular award of costs); and
3. Settlement and conduct (including any written offer to settle, any conduct of a party that tended to shorten or unnecessarily lengthen the proceeding and any other relevant matter).
[5] In response to these three categories advanced I find as follows:
1. Results: The Applicant was wholly successful and received all the relief asked for. As a result the Applicant will receive funding from the Minister of Heritage in the amount of approximately $110,000.00.
2. Importance and complexity of the case / public interest advanced: This was not a particularly complex case. It involved the exercise of ministerial discretion and whether the Minister when making discretionary grants could change the rules in midstream and apply the new rules to applications already in progress under the old rules. The Applicant set out in his submissions a lengthy Charter argument, which was essentially abandoned during the hearing as it rested on very weak premises. The application was argued in 2 hours before me in Ottawa and no additional submissions were required or requested. While the Applicant had a solid self interest in bringing these proceedings, there is no doubt that they also involved a certain amount of public interest. The decision should clarify the ambit of ministerial action under discretionary grant programs.
3. Settlement of costs: There were extensive pre-litigation settlement discussions before the Applicant launched its application for judicial review on July 21, 2003. The order granting the relief sought was issued on March 16, 2004. However, it is well established law that any cost expended on settlement discussions prior to the commencement of litigation cannot be claimed unless they ultimately advance the litigation. See Mitchell v. Canada (M.N.R.), [2003] F.C.J. No. 1530 para 13. All the settlement costs claimed by the Applicant in this matter were expended prior to July 21, 2003, the launching of the judicial review application. At best, these efforts marginally advanced the litigation.
[6] The Respondent asks that all the costs should be assessed in accordance with Column III of Tariff B which according to its calculation would result in an award of costs and disbursements of $8,917.62.
[7] Costs, of course, can never fully compensate a successful Applicant for the costs incurred in a proceeding. As Wetston J. stated in Apotex v. Wellcome Foundation, [1998] F.C.J. No 1736 at para 7:
An important principle underlying costs is that an award of costs represents a compromise between compensating a successful party and not unduly burdening an unsuccessful party.
[8] Given the outcome of these proceedings and taking into account the following:
- that the settlement discussions predated the start of litigation and only marginally advanced the litigation;
- that the Applicant advanced a weak and superfluous Charter argument;
- the relatively uncomplicated issues;
- that the issue was disposed of in two hours although counsel spent 45.4 hours of preparation on the notice of application and spent 101.4 hours in preparing for the hearing;
- but also noting that the issues litigated contained both private and public interest aspects and that the settlement negotiations did to some degree help to crystalize the subsequent litigation;
I am of the view that a lump sum payment in the amount of $17,000.00 would be appropriate.
ORDER
THIS COURT ORDERS that the Respondent pay the Applicant a total sum of $17,000.00 in costs and disbursements.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: T-1283-03
STYLE OF CAUSE: BRUNICO COMMUNICATIONS INC.
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
DATE OF HEARING: SEPTEMBER 22, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: SEPTEMBER 23, 2004
APPEARANCES BY:
Ms. Julie Thorburn
FOR THE APPLICANT
Ms. Valerie Anderson
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Julie Thorburn
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040923
Docket: T-1283-03
BETWEEN:
BRUNICO COMMUNICATIONS INC.
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER