Date: 20030716
Docket: T-66-86A
Citation: 2003 FC 888
BETWEEN:
BERTHA L'HIRONDELLE suing on her own
behalf and on behalf of all other members of the
Sawridge Band
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
and
NATIVE COUNCIL OF CANADA, NATIVE COUNCIL
OF CANADA (ALBERTA), NON- STATUS INDIAN
ASSOCIATION OF ALBERTA and NATIVE WOMEN'S
ASSOCIATION OF CANADA
Interveners
Assessment Officer
[1] The Defendant applied for various remedies, including contempt of court, concerning the alleged failure of the Plaintiffs to comply with directions of the Court addressing examination for discovery of the Plaintiffs conducted on September 11 and 12, 2001. The Court's Reasons for Order and Order dated November 30, 2001 allowed the motion, including lump sum costs of $2,000.00, and directed that the Plaintiffs pay the Defendant's costs of the September 11 and 12, 2001 examination for discovery, including the costs of obtaining transcripts, all forthwith and in any event of the cause. I issued a timetable for disposition in writing of the Defendant's bill of costs.
The Defendant's Position
[2] The Defendant noted that payment of the costs has been requested several times, but nothing has been forthcoming. The Defendant requested costs of this assessment.
The Plaintiff's Position
[3] The Plaintiffs argued that the number of units, hours and disbursements claimed for the appearance at the discovery are excessive and should be reduced. The Defendant has not justified the maximum 3 units per hour claimed under item 9 for appearance and therefore 2 units per hour would be sufficient. The Plaintiffs argued that the verbatim reporter's invoice indicates a duration of 4 hours for the discovery, but the bill of costs seeks 8 hours attendance for each of two counsel. Therefore, the number of hours assessable for the examination for discovery should be reduced from 16 hours to 4 hours. The Plaintiffs argued that, in the absence of authority from the Court to the contrary, only the costs of normal delivery of transcript should be allowed, and not the expedited delivery disclosed in the verbatim reporter's invoice.
Assessment
[4] The Court record indicates that the motions Judge had material before him disclosing the presence of two counsel for the Defendant at the examination for discovery. The Defendant's motion requested the higher costs available under Column V. The Court's decision dated November 30, 2001 asserted disapproval of the Plaintiffs' conduct and imposed procedural sanctions. In awarding costs, it did not authorize unwarranted or excessive costs, but I think that at least part of the decision acknowledged circumstances warranting particular consideration for the Defendant's costs at this stage of the litigation. However, the Court's order for the Defendant's costs of the discovery, to be paid by the Plaintiffs in any event of the cause, was an award of Column III party and party costs in the usual instance (Rule 407), but not the Column V costs sought in the motion, nor solicitor-client costs.
[5] I think that it would be too great a stretch of my enunciation of the parameters for discretion in Grace M. Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 and of the application of 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", to presume or conclude here that the Court's award of costs, although a function of its disapproval of the Plaintiffs' conduct and made in the face of an express invitation for elevated costs, intended something beyond the ordinary party and party scale, i.e. such as second counsel under item 9. I conclude, however, that the circumstances of the discovery were difficult enough to warrant the maximum 3 units per hour. The verbatim reporter's invoice lists both dates, but charges only for 4 hours (pages 63 and 94 of the transcript disclose the breaks in the examination). I allow item 9 for one counsel at 3 units per hour for 4 hours.
[6] The Defendant's rebuttal materials filed November 26, 2001 (in support of its motion leading to the subject award of costs) asserted the tightness of the pre-trial schedule imposed by the Court. The Order dated September 28, 2001 set more deadlines for completion of discoveries, undertakings and motions arising out of discovery with the last deadline being June 3, 2002. The verbatim reporter's invoice, dated September 16, 2001 several days before the September 28, 2001 timetable, charged an expedited delivery rate of $4.00 per page which is approximately twice the expected normal delivery rate of $2.00 - $2.50 per page. The invoice included minimal charges associated with T-66-86B: Bruce Starlight et al. v. Her Majesty the Queen et al. (2001 FCA 339 confirms the severance of T-66-86A and T-66-86B) which are not claimed here. I think that the Defendant quite rightly needed to move this proceeding along, but I cannot conclude that the particular circumstances at this stage of this litigation justified expedited delivery. I allow the 130 pages claimed at a reduced rate of $2.50 per page.
[7] In the circumstances, I think that a mid-range allowance of 4 units is appropriate for the Defendant's costs of the assessment. Those costs stand apart from the lump sum awarded for the motion and flow as a natural consequence of the Defendant having to crystalize, by way of assessment, the dollar amount of the award of costs for the examination for discovery. The Defendant's bill of costs, presented at $7,964.80, is assessed and allowed at $4,236.15 (inclusive of the $2,000.00 lump sum awarded for the motion).
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, British Columbia
July 16, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-66-86A
STYLE OF CAUSE: Bertha L'Hirondelle et al. v. Her Majesty the Queen et al
ASSESSMENT IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS - REASONS: CHARLES E. STINSON
DATED: July 16, 2003
SOLICITORS OF RECORD:
Aird & Berlis for Plaintiffs
Toronto, ON
Catherine Twinn for Plaintiffs
Slave Lake, AB
Morris Rosenberg for Defendant
Deputy A/G of Canada
Lang Michener for Intervener Native Council of Canada
Ottawa, ON
Burnett Duckworth & Palmer for Intervener Non-Status Indian Association of Alberta
Calgary, AB
Field Atkinson Perraton for Intervener Native Council of Canada (Alberta)
Edmonton, AB
Eberts Symes Street & Corbett for Intervener Native Women's Association of Canada
Toronto, ON