BETWEEN:
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
and
VICTOR MARIE uncontested Chief and
NORMAN STARR uncontested duly 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
ASSESSMENT OF COSTS - REASONS
Assessment Officer
[1] Further to the Applicants' notice of motion for a finding of contempt against eight of the nine Respondents, the Court found two of the Respondents in contempt, but dismissed the motion for contempt relative to the other six subject Respondents, including David Gowans (the Respondent Gowans), with mid-Column IV costs to the Respondent Gowans (the June 29, 2006 findings). I issued a timetable for written disposition of the assessment of the bill of costs of the Respondent Gowans.
I. The Positions of the Respondent Gowans and of the Applicants
[2] The Respondent Gowans conceded the Applicants' objection that counsel fee item 14(a) (appearance) should be reduced from the maximum 4 units ($120.00 per unit) per hour claimed to the mid-range value of 3 units per hour permitted by the Court's decision. As for the Applicants' assertion that the Court was in session for only six hours and not the seven hours per day claimed, and that counsel for the Respondent Gowans did not have a major involvement in the larger process of defending against allegations of contempt relative to his client and several others at the show cause hearing, the Respondent Gowans argued that the Court's award of costs has already accounted for the circumstances of his counsel's role, but that he will accept the record in the court file of the actual hours of the extended sitting in this matter. As for the Applicants' assertion that $0.445 per kilometre for counsel to drive to the hearing venue should be reduced to $0.30 per kilometre, the Respondent Gowans noted that Court of Queen's Bench of Alberta permits $0.43 and the Income Tax Act permits $0.445. As for the Applicants' assertion of the lack of evidence supporting an unreasonable and excessive claim of $296.37, as opposed to something in the order of $150.00 for counsel to stay one night at a hotel, the Respondent Gowans, having led only his counsel's expense report in chief, produced in rebuttal hotel receipts showing $89.00 + taxes per night for three nights.
II. Assessment
[3] My view, expressed further to my approach in Carlile v. Canada (M.N.R.) (1997), 97 D.T.C. 5284 (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 out a reasonable result for costs equitable for both sides. I think that my view is reinforced by the editorial comments (see The Honourable James J. Carthy, W.A. Derry Millar & Jeffrey G. Gowan, Ontario Annual Practice 2005-2006 (Aurora, Ont.: Canada Law Book, 2005)) for Rules 57 and 58 to the effect that an assessment of costs is more of an art form than an application of rules and principles as a function of the general weight and feel of the file and issues, and of the judgment and experience of the assessment officer faced with the difficult task of balancing the effect of what could be several subjective and objective factors.
[4] I have consistently held that an appearance by counsel at a hearing within the meaning of item 14(a) necessarily includes some time in the courtroom before the scheduled start or resumption times identifying oneself with the Court Registrar, waiting for the call of the case and otherwise satisfying the Court Registrar that the hearing is ready to proceed, none of which I consider to be preparation time embodied in other counsel fee items. Therefore, the abstract of hearing in the record is a useful, but not absolute, guide for assessing attendance at hearings which may have had a mix of shorter or longer breaks for recesses and lunch. The record discloses sitting times of 0932 – 1625 and 0930-1610 hours respectively for this two-day show cause hearing. I allow 7 hours for the first day and 6.5 hours for the second day. These allowances are consistent with the entries for attendance, but also include certain preparation time, on page 6 of the solicitor-client bill of the Applicants' counsel (Exhibit A to the affidavit of Chris J. Watson sworn October 17, 2006). I have not given any weight to the Applicants' proposition concerning the role of counsel for the Respondent Gowans: allegations of contempt entail serious potential consequences inconsistent with a presumption of passive conduct by one's counsel. The June 29, 2006 findings did not devote much space to the Respondent Gowans, but they did at para. [88](b) note that his counsel was of considerable assistance to the Court.
[5] In Almecon Industries Ltd. v. Anchortek Ltd., [2003] F.C.J. No. 1649 (A.O.) at para. [31], I found certain comments in the evidence, although self-serving, nonetheless to be pragmatic and sensible concerning the reality of a myriad of essential disbursements for which the costs of proof might or would exceed their amount. However, that is not to suggest litigants can get by without any evidence by relying on the discretion and experience of the assessment officer. The proof here initially was less than absolute, i.e. counsel's expense report summary conveying the impression of a $300 per night hotel room. A paucity of evidence for the circumstances underlying each expense makes it difficult for the respondent on the assessment of costs and the assessment officer to be satisfied that each expense was incurred as a function of reasonable necessity. The less that evidence is available, the more the assessing party is bound up in the assessment officer's discretion which is to be exercised conservatively, with a sense of austerity pervading the costs, thereby precluding prejudice to the payer of those costs. However, real expenditures are needed to advance litigation: a result of zero dollars at assessment would be absurd. In rebuttal, the Respondent Gowans produced evidence which, if led in chief as it should have been, might have precluded the Applicants' work in challenging hotel charges. In fact, the room rate was $89.00 per night + taxes for three nights (counsel not attempting the drive back to his home city after the second day's sitting). I allow this charge as presented.
[6] Part 5(b) in the Alberta Rules of Court, "Schedule E – Tariff of Fees for Court Officials, Number 3, Amounts Payable by Parties to Witnesses and Jurors in Civil Proceedings", provides a car allowance at the amount prescribed by section 15 of the Public Service Subsistence, Travel and Moving Expenses Regulation under the Alberta Public Service Act. Said section 15 currently prescribes $0.43 per kilometre for official government business, a rate which Alberta taxing officers apply to counsel as well. An interesting point of comparison is section 16 of said Regulation providing $0.14 per kilometre for travel on government business where another type of transport is more direct, practical and cost effective. In this instance, I approve private vehicle use by counsel between the cities of Grande Prairie and Edmonton, Alberta, at $0.43 per kilometre in place of the $0.445 per kilometre claimed.
[7] On April 4, 2005, in this proceeding, reported at Wanderingspirit v. Salt River First Nation 195, [2005] F.C.J. No. 550 (A.O.), I assessed the Applicants' costs of the judicial review. There, I found the Respondents' reply materials to be non-responsive or unfocused, but I did intervene to their benefit, including the Respondent Gowans, based on my perception of their general opposition to the bill of costs. Specifically, I found that I had no jurisdiction, in the absence of visible authority therefor, to allow counsel fee item 24 (travel). I do however have authority for the associated travel disbursements: see Marshall v. Canada, [2006] F.C.J. No. 1282 (A.O.) for a fuller rationale. The Applicants asserted generally that the claimed costs were excessive as a function of certain factors, none of which was item 24. I think it only consistent in this litigation for me to disallow the item 24 claim in the Respondent Gowans' bill of costs.
[8] The initial bill of costs of the Respondent Gowans for $11,652.71 claimed maximum Column IV counsel fees. An amended bill of costs had cut most of the claims back to the mid-ranges of Column IV, except for item 14(a), and claimed $8,599.91. That amended bill of costs is now assessed and allowed at $7,886.63.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2007-02
STYLE OF CAUSE: MELVIN WANDERINGSPIRIT et al. v.
VICTOR MARIE et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON.
WRITTEN REPRESENTATIONS BY:
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Mr. Chris J. Watson |
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Mr. D. Bruce Logan
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SOLICITORS OF RECORD: