Date: 20041201
Docket: A-88-01, A-89-01
Citation: 2004 FCA 406
BETWEEN:
A-89-01
JOYCE WILMA BEATTIE
Appellant
- and -
HER MAJESTY THE QUEEN, as represented by the
MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondent
- and -
SAHTU SECRETARIAT INCORPORATED
Third Party
BETWEEN:
A-88-01
JOYCE WILMA BEATTIE
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
- and -
SAHTU SECRETARIAT INCORPORATED
Third Party
Assessment Officer
[1] These appeals, addressing issues of rights of signatory Indians to assistance for agricultural pursuits outside the area defined by Treaty No. 11 signed in 1921 and to payment by the Crown of their legal costs to assert entitlement to such assistance, were dismissed with costs. The Respondent presented a single bill of costs for $24,131.77. In response to my preliminary query, the Respondent confirmed that said bill of costs indeed included costs for the related Federal Court files T-2216-91 (the agricultural assistance action: appealed by A-89-01) and T-361-93 (the legal fees action: appealed by A-88-01). My subsequent timetable for written disposition of the assessment of the bill of costs included a direction that, to the extent possible, the Respondent shall identify which costs relate to each of the four court files.
[2] The Respondent led extensive materials in asserting the complexity and novelty of the issues in these pieces of litigation. The Appellant replied that certain assertions were incorrect, ie. that the Federal Court had awarded costs in favour of the Respondent in T-2216-91 and T-361-93, and argued that it should therefore follow that, given the Respondent had pursued costs for said Federal Court matters without authority and refused, over a period of two years, to address them separate from the Federal Court of Appeal matters, nothing should be allowed here for item 25 (services after judgment), item 26 (assessment of costs) and interest on costs. The Appellant conceded the $1,389.48 claimed for disbursements incurred from February 19, 2001 (institution of the appeals) to March 14, 2002 (judgment) relative to A-88-01 and A-89-01.
[3] The Appellant argued that this litigation did not warrant the high end of Column III counsel fees because, regardless of the several legal and factual issues raised at the trials, the Federal Court decisions were simply functions of findings of fact that the original Indian adherents to Treaty No. 11 would not likely have pursued agricultural endeavours outside the treaty area nor accordingly have pursued associated legal costs. Subsequently, both appeals were confined to the single legal issue, itself neither complex nor novel, of whether the geographical extent of treaty rights in a modern context can be a function of what original treaty adherents were likely, or unlikely, to have contemplated. Accordingly, a total of 4 fee units only at $110.00 per unit (+ 7% GST) plus $1,389.48 (+ 7% GST) = $1,957.54 should be the total allowance for A-88-01 and A-89-01.
[4] The Respondent withdrew any costs associated with T-2216-91 and T-361-93 and indicated that a separate motion would be made to secure said costs. The Respondent argued for some allowance for the assessment of costs on the basis that the Appellant, having responded to the claim for Federal Court costs with the simple assertion that such costs were not ordered and therefore are not allowable, has not been unduly burdened or prejudiced. Accordingly, the claim for the maximum 6 units under item 26 has been revised down to 3 units. The Respondent accepted the conceded amount of $1,389.48 for disbursements.
[5] The Respondent pruned counsel fee items leaving claims for item 18 (appeal book: 1 unit); item 19 (memorandum of fact and law: 6 units from the 4-7 range); item 22 (appearance at hearing: 2 units per hour from the 2-3 range); item 25 (services after judgment: 1 unit) and item 26 (assessment of costs: 3 units from the 2-6 range). The Respondent argued that the novel aspects of this litigation justify higher costs given the absence of precedents for the issues particular to this litigation, ie. entitlement to agricultural assistance outside a treaty area and to legal costs payable by the Crown to enforce such entitlement. These issues required the Court to make varied analyses of treaty terms, historical context and intentions at the time of the treaty, interpretations and remedies in a modern context, other treaties with differing features also providing for agricultural assistance and factors of discrimination within the scope of the Canadian Charter of Rights and Freedoms. Further, the voluminous appeal books and facta, addressing matters over several decades, confirm complexity. The Respondent noted that there were unsuccessful attempts to reach a consensus on costs, but in the absence of directions otherwise from the Court, the costs claimed are appropriate for this litigation and within the parameters of Column III. The Respondent claimed interest on costs from the date of the Federal Court of Appeal judgment (March 14, 2002).
ASSESSMENT
[6] I concluded at paragraph [7] in Bruce Starlight et al. v. Her Majesty the Queen, [2001] F.C.J. No. 1376 (A.O.) that the same point in the ranges throughout the columns in the Tariff need not be used as each item for the services of counsel must be considered in its own circumstances and that some generalization is required between the available values in ranges. My reading of the Court's decision and of the various materials on the court files persuades me that the revised counsel fees are appropriate for this litigation within the parameters of Column III, except for item 26. I think that it should have been immediately obvious to the Respondent that entitlement to Federal Court costs was precluded by the absence of an exercise of discretion under Rule 400(1) for costs. However, although the Appellant may have found the Respondent's pursuit of Federal Court costs irksome over a period of time, the former's work in resisting said pursuit was not complex and there was nothing to suggest that the latter's counsel pursued said costs for any perverse reasons. That is, I think the pursuit of the Federal Court costs likely stemmed from a misapprehension of certain principles of costs. In those circumstances, I allow only the minimum 2 units under item 26 for the assessment of the Federal Court of Appeal costs. As for interest, I have no jurisdiction to interfere in the statutory scheme laid out by the Federal Courts Act, s. 37. The Respondent's bill of costs, presented at $24,131.77, is assessed and allowed at $3,369.94 together with interest thereon from March 14, 2002, as prescribed by law (the Court Order Interest Act, R.S.B.C. 1996, c. 79).
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, BC
December 1, 2004
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-88-01 and A-89-01
STYLE OF CAUSE: JOYCE WILMA BEATTIE
v. HER MAJESTY THE QUEEN et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: December 1, 2004
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada for Respondent