Date: 20030716
Docket: T-66-86B
Citation: 2003 FC 889
BETWEEN:
BRUCE STARLIGHT suing on his own
behalf and on behalf of all other members of the
TSUU T'INA FIRST NATION
(formerly the SARCEE INDIAN 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 November 13 and 14, 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 November 13 and 14, 2001 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 7 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 7 hours.
[4] The Plaintiffs argued that the Court's order for costs of the discovery was silent as to travel expenses for counsel and therefore the claim for two sets of travel expenses for counsel should be disallowed. It has been held in the Federal Court of Appeal, Beaulieu v. Canada [2000] F.C.J. no. 2127 (A.O.), that "only judges have the discretionary authority to compensate counsel for travel". The Plaintiffs argued alternatively that only one set of travel expenses should be allowed. The Plaintiffs argued that, in the absence of authority from the Court to the contrary, only the costs of normal delivery of a single transcript should be allowed, and not the expedited delivery of two sets of transcript disclosed in the Court reporter's invoice.
Assessment
[5] 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.
[6] 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 discloses a duration of 7 hours. I allow item 9 for one counsel at 3 units per hour for 7 hours.
[7] 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 November 19, 2001 almost two months after the September 28, 2001 timetable, charged an expedited delivery rate of $4.30 per page which is approximately twice the expected normal delivery rate of $2.00 - $2.50 per page. Unlike my decision (see 2003 FC 888) in the related matter T-66-86A: Bertha L'Hirondelle et al. v. Her Majesty the Queen, I think that the circumstances of short timelines existing at this point in this litigation warranted expedited delivery. Those circumstances do not justify the Plaintiffs having to pay for a second copy. However, I do not need to reduce the Defendant's costs accordingly because the record indicates that the charge for transcript was a function only of the actual number of pages (235) in a single copy despite the presence in the invoice of a notation for a second or extra copy.
[8] As for disbursements for the travel by counsel, Beaulieu v. Canada (supra) does not help the Plaintiffs. It addressed counsel fees under item 24, but does not appear to have had to consider any associated travel disbursements. I have held repeatedly that the restriction for counsel fees under item 24, i.e. requiring a visible direction of the Court, does not extend to associated travel disbursements because fees and disbursements are distinct and discrete items of costs. The Crown is bound by statute (Department of Justice Act) to have legal representation and these travel disbursements were essential to place counsel at the discovery venue. The amounts claimed are reasonable. I think that the Defendant's legal representatives were faced with difficult circumstances in completing their discoveries within restricted timeframes, but I will not speculate on whether I think two counsel were justified. I have allowed one counsel above under item 9 and I allow one set of associated travel disbursements.
[9] 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 award 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 $9,644.14, is assessed and allowed at $6,663.54 (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-66-86B
STYLE OF CAUSE: Bruce Starlight 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