Date: 200500404
Docket: T-2007-02
Citation: 2005 FC 441
BETWEEN:
MELVIN WANDERINGSPIRIT, DELPHINE BEAULIEU,
TONI HERON, RAYMOND BEAVER and SONNY McDONALD
in their capacity as COUNCILLORS OF THE
SALT RIVER FIRST NATION 195, elected August 30, 2002
Applicants
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VICTOR MARIE uncontested Chief and NORMAN STARR
uncontested newly elected BAND COUNCIL MEMBER,
NORA BEAVER, DAVID GOWANS, CONNIE BENWELL,
MICHEL BJORNSON, HARVEY LEPINE and DON TOURANGEAU,
purportedly elected BAND COUNCILLORS at a meeting held November 3, 2002,
and JEANNIE MARIE-JEWELL, acting as Interim Band Manager
Respondents
Assessment Officer
[1] The Applicants successfully achieved judicial review, together with costs, of an election held by the Salt River First Nation 195 purportedly to terminate their terms as duly elected band councillors and replace them with certain of the Respondents. After some preliminary correspondence concerning the logistics of securing appearance by the Respondents (who appear to be unrepresented at this stage) at an oral hearing, the Applicants agreed to issuance of a timetable for written disposition of the assessment of their bill of costs.
[2] I find the Respondents' reply materials to be either non-responsive or unfocused. I do not have the Court's Rule 400(1) jurisdiction to deny costs to the Applicants, a result requested of me by the Respondents' reply materials but which is clearly precluded here both by the reality that the Court has already exercised its Rule 400(1) jurisdiction to award such costs, and by the jurisdictional boundaries dictated by the definitions of court and assessment officer in ss. 4 and 5.1(1) of the Federal Courts Act and Rule 2 of the Federal Courts Rules respectively.
[3] Effectively, the absence of any relevant representations by the Respondents which could assist me in identifying issues and making a decision leaves the Applicants' bill unopposed. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant's advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, ie. those outside the authority of the judgment and the tariff. I examined each item claimed in the bill of costs and the supporting materials within those parameters. In the circumstances of this litigation, the claims in the bill of costs, although at the maximum values in the available ranges for counsel fee items, are generally arguable within the limits of the award of costs. However, certain things warrant my intervention as a function of my expressed parameters above and given what I perceive as general opposition to the bill of costs.
[4] Specifically, the bill of costs claims counsel fees under items 5 (preparation) and 6 (appearance) for a number of motions and hearings resulting in several orders and directions from the Court, all of which were silent as to costs. The Applicants asserted that, as these various interlocutory hearings and decisions all pre-dated the coming into force on July 2, 2003 of the Federal Courts Act, it is still open for the assessment officer at this stage to award costs in the cause. Quite simply, that assertion is untenable. The coming into force of the Federal Courts Act did not change the basic scheme of costs and associated principles within the Federal Court of Canada coming forward into July 2, 2003, and becoming immediately applicable on that date to matters in the Federal Court and in the Federal Court of Appeal as a function of transitional section 191 of the Courts Administration Service Act:
191. Rules that were made under section 46 of the Federal Court Act before the coming into force of section 44 of this Act are deemed to have been validly made and continue to have force as though they had been made under section 46 of the Federal Courts Act, as amended by section 44 of this Act.
Therefore, my conclusions in paragraph [6] of Balisky v. Canada (Minister of Natural Resources) [2004] F.C.J. No. 536 (A.O.) still apply: I have no jurisdiction to assess costs for these various items 5 and 6 as a function of decisions silent on costs. For similar reasons, I do not exercise the authority or discretion of the Court as contemplated by counsel fee items 14(b) (appearance of second counsel) and 24 (travel by counsel) and therefore I disallow said items as well. My first inclination was to disallow the claim under item 7 (discovery of documents) as this service is ordinarily integral to actions and I did not see anything obvious in the record that could buttress an argument that it was a feature of this litigation. However, this proceeding did feature numerous preliminary matters requiring intervention by the Court relative to the interim affairs of the Band. These included the Order dated January 21, 2003 referring to production of documents. Documents not covered by an affidavit were accepted by the Court as exhibits at the judicial review. In the particular circumstances here, I allow item 7 as claimed. All other counsel fee items are allowed as presented.
[5] My view, often expressed further to my approach in Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608 that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", is that discretion may be applied to sort a reasonable result for costs equitable for both sides. The disbursements claimed here would include charges associated with disallowed items 5, 6 and 24 above. I have consistently held that the restriction noted above for item 24 applies only to counsel fees, but not to my jurisdiction for the associated travel disbursements. Therefore, I need only reduce the disbursement total of $15,181.38 claimed in the bill of costs by a factor accounting only for items 5 and 6. I remove $2,500.00 in that vein as there were several such matters. The Applicants' bill of costs, presented at $64,971.87, is assessed and allowed at $46,642.78.
(Sgd.) "Charles E. Stinson"
Assessment Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2007-02
STYLE OF CAUSE: MELVIN WANDERINGSPRIRIT et al.
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VICTOR MARIE et al.
ASSESSMENT OF COSTS IN WRITING PERSONAL APPEARANCE
OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: April 4, 2005
SOLICITORS OF RECORD:
MacKenzie Fujisawa for Applicants
Vancouver, BC