Date: 20030807
Docket: T-1073-99
Citation: 2003 FC 958
Ottawa, Ontario, this 7th day of August, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
DANIEL MARTIN BELLEMARE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is a motion for the review of assessment of costs brought pursuant to s. 414 of the Federal Court Rules, 1998, SOR/98-106, as amended (the "Rules").
Background Facts
[2] On June 21, 1999, the applicant, Mr. Daniel Bellemare, applied for judicial review of two decisions of the Information Commissioner pursuant to s. 41 of the Access to Information Act, R.S.C., 1985, c. A-1 (the "Act"). Before the application was heard, the Attorney General of Canada brought a motion to have it struck on the ground that it was filed out of time. The application was partially granted by Pinard J. of the Federal Court Trial Division. This decision was successfully appealed by the Attorney General, and the Federal Court of Appeal held that the judicial review application should be entirely struck out for other reasons.
[3] In its judgment issued on November 30, 2002, the Court wrote:
The appeal is allowed, the decision of the motions Judge is set aside and the application for judicial review is struck in its entirety with costs in favour of the appellant before both the Trial Division and the Appeal Division. The Information Commissioner shall bear his own costs as well as the disbursements of the respondent resulting from his intervention.
(emphasis added)
[4] In his reasons for judgment, Noël J.A. writing for the Court stated:
For these reasons, I would allow the appeal, set aside the decision of the motions Judge and giving [sic?] the judgment that the motions Judge should have given, I would strike the application for judicial review in its entirety with costs in favour of the appellant before both the Trial Division and the Appeal Division. In conformity with the order which allowed for his intervention, the Information Commissioner will bear his own costs as well as the disbursements of the respondent resulting from his intervention.
(emphasis added)
[5] The Commissioner of Information had intervened at the appeal stage.
[6] Subsequent to the decision, both the Attorney General and the applicant submitted memoranda on costs. On 16 May, 2003, Taxation Officer Michelle Lamy issued two costs certificates and reasons. She assessed the Attorney General's costs at $2,442.48 (for T-1073-99) and $2,217-12 (for A-598-99), for a total of $4,659.60.
[7] The applicant, Mr. Daniel Bellemare, seeks a review of the above assessment under s. 414 of the Rules, which provides:
| A party who is dissatisfied with an assessment of an assessment officer who is not a judge may, within 10 days after the assessment, serve and file a notice of motion to request that a judge of the Trial Division review the award of costs.
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La partie qui n'est pas d'accord avec la taxation d'un officier taxateur, autre qu'un juge, peut demander à un juge de la Section de première instance de la réviser en signifiant et déposant une requête à cet effet dans les 10 jours suivant la taxation.
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Issues
[8] Did the officer commit a reviewable error in her costs assessment?
Standard of Review
[9] The parties submit that the jurisprudence suggests that intervention by the Court is permitted only in cases where "an error in principle has occurred, or [...] where the amount assessed can be shown to be so unreasonable that an error in principle must have been the cause": Wilson v. Canada, [2000] F.C.J. No. 1783 (QL) at para. 10. This standard was originally articulated by the Federal Court of Appeal in I.B.M. Can. Ltd. v. Xerox of Can. Ltd., [1977] 1 F.C. 181 (C.A.). I accept that this is the appropriate standard for review under s. 414 of the Rules.
Analysis
[10] The applicant submits a number of arguments in support of the proposition that the officer's assessment was unreasonable and exorbitant and thus reviewable.
[11] First, the applicant argues that the May 9, 2000, order of Mr. Justice Décary wherein the Commissioner's motion to intervene was granted, should be interpreted in his favour. The order provides, inter alia, that: "le Commissaire sera redevable des dépens de l'appel ainsi que de ceux de la présent requête, envers l'intimé Bellemare quel que soit le sort de l'appel." The applicant argues that the wording of this order should prevail over the direction given by the Federal Court of Appeal in the final judgment - quoted above in paras. 3-4 - which provided for "costs in favour of the appellant before both the Trial Division and the Appeal Division". It is noted that the latter decision expressly stated that the Information Commissioner should bear his own costs as well as the disbursements of the respondent resulting from his intervention.
[12] The Attorney General argues that the wording of the November 30, 2002, judgment is clear and that the applicant must pay the costs at both the trial and appeal levels. The Attorney General argues that subsection 400(1) of the Rules provides that the Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid. The Information Commissioner, in a separate memorandum, submits that he is not liable for costs and that the order of November 30, 2002, is unambiguous concerning which party shall bear the costs.
[13] I am of the view that the applicant's argument as stated above has no merit. The Federal Court of Appeal clearly ordered that he pay the costs of the Attorney General at the trial and appeal levels. In any event, I am not convinced that the May 9, 2000, order concerning costs incurred as a result of the Commissioner's intervention conflicts with the content of the November 30, 2002, order.
[14] Secondly, the applicant argues that the taxation officer did not take into account the factors listed in the Rules' subsection 400(3), as required by s. 409. Rule 409 provides:
In assessing costs, an assessment officer may consider the factors referred to in subsection 400(3).
L'officier taxateur peut tenir compte des facteurs visés au paragraphe 400(3) lors de la taxation des dépens.
[15] Paragraph 400(3)(h) provides:
| In exercising its discretion under subsection (1), the Court may consider
(h) whether the public interest in having the proceeding litigated justifies a particular award of costs;
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Dans l'exercice de son pouvoir discrétionnaire en application du paragraphe (1), la Cour peut tenir compte de l'un ou l'autre des facteurs suivants :
h) le fait que l'intérêt public dans la résolution judiciaire de l'instance justifie une adjudication particulière des dépens;
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[16] The applicant submits that the intention of the Act is to allow citizens a right of access to government information and the officer's assessment does not support that purpose but impedes access to justice. He notes that s. 53 of the Act provides:
| (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.
(2) Where the Court is of the opinion that an application for review under section 41 or 42 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.
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(1) Sous réserve du paragraphe (2), les frais et dépens sont laissés à l'appréciation de la Cour et suivent, sauf ordonnance contraire de la Cour, le sort du principal.
(2) Dans les cas où elle estime que l'objet des recours visés aux articles 41 et 42 a soulevé un principe important et nouveau quant à la présente loi, la Cour accorde les frais et dépens à la personne qui a exercé le recours devant elle, même si cette personne a été déboutée de son recours.
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[17] The applicant submits that his judicial review raised a new and important principle clarifying the law and that subsection 53(2) of the Act is triggered as to preclude a costs order against him.
[18] The Attorney General submits that the Federal Court of Appeal clearly exercised its power granted under subsection 400(1) in ordering costs against the applicant The Attorney General also notes that the applicant did not present any requests prior to the assessment pursuant to s. 403, which provides:
| A party may request that directions be given to the assessment officer respecting any matter referred to in rule 400,
(a) by serving and filing a notice of motion within 30 days after judgment has been pronounced; or
(b) in a motion for judgment under subsection 394(2).
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Une partie peut demander que des directives soient données à l'officier taxateur au sujet des questions visées à la règle 400 :
a) soit en signifiant et en déposant un avis de requête dans les 30 jours suivant le prononcé du jugement;
b) soit par voie de requête au moment de la présentation de la requête pour jugement selon le paragraphe 394(2).
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[19] The Attorney General submits that the costs were rightly assessed as per the Rules sections 405 and 407, which provide that costs shall be assessed by an assessment officer and that party-and-party costs shall be assessed in accordance with column III of the table to Tariff B, unless the Court orders otherwise.
[20] I agree with the Attorney General. The order of the Federal Court of Appeal makes it clear that costs are to be assessed against the applicant. In exercising its discretion, the Court did not refer to paragraph 400(3)(h) of the Rules or state that there was a public interest in the litigation that justified an award of costs in favour of the applicant. Consequently, I am unable to find that the assessment officer erred in assessing costs according to column III of the table to Tariff B. I find that the officer did not commit an error in principle in making her assessment.
[21] In addition, s. 53(1) of the Act clearly provides that costs shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise and, in this case, the Court did not order otherwise.
[22] Thirdly, the applicant submits that the officer erred in assessing costs of one unit under item 6 of Tariff B - "appearance on a motion, per hour" and in assessing costs of four units under item 19 of Tariff B - "memorandum of fact and law" in respect of the trial motion heard by Pinard J. The applicant notes that at the trial level the judicial review was partially granted, and submits that the cost assessment should reflect this partial victory.
[23] I am of the view that the officer's assessment is in accord with the direction of the Court of Appeal, which provides for "costs in favour of the appellant before both the Trial Division and the Appeal Division". Consequently, I find that the officer did not err in principle nor in assessing an unreasonable amount.
Conclusion
[24] For the reasons stated above, the motion for the review of the assessment of costs is dismissed.
ORDER
THIS COURT ORDERS that:
1. The motion for the review of the assessment of costs dated May 16, 2003, is dismissed.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1073-99
STYLE OF CAUSE: Bellemare v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario, under Rule 369
DATE OF HEARING: pursuant to Rule 369
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: August 7, 2003
APPEARANCES:
Mr. Pierre Bourque FOR APPLICANT
Mr. Claude Morissette FOR RESPONDENT
SOLICITORS OF RECORD:
Desjardins Ducharme Stein Monast FOR APPLICANT
Montréal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario