Landry v. The Band Council of the Abénakis of Wôlinak

Landry v. The Band Council of the Abénakis of Wôlinak Court (s) Database Federal Court of Appeal Decisions Date 2023-03-13 Neutral citation 2023 FCA 56 File numbers A-224-20 Decision Content Date: 20230313 Docket: A-224-20 Citation: 2023 FCA 56 [ENGLISH TRANSLATION] Present: AUDREY BLANCHET, Assessment Officer BETWEEN: STÉPHANE LANDRY, NATHALIE GROLEAU, KEVIN GAILLARDETZ‑LANDRY, PIERRE‑OLIVIER BERTHIAUME, SARAH LANDRYLANDRY‑GAGNON, LANDRY‑GAGNON, DAREN SHAREEN LANDRY, LOUISE SAVARD, DENIS LANDRY, NATHALIE BERNARD, NORMAND CORRIVEAU, NORMAND JUNIOR CORRIVEAU, PASCAL BERNARD CORRIVEAU, ANDRE MONTPLAISIR, DANIEL LANDRY, DANIEL ROCHELEAU, EMMANUEL CLOUTIER Appellants and THE BAND COUNCIL OF THE ABÉNAKIS OF WÔLINAK, MICHEL R. BERNARD, RENE MILETTE, LUCIEN MILETTE, CHRISTIAN TROTTIER Respondents Assessment of costs in writing without appearance of the parties. Certificate of costs delivered at Ottawa, Ontario, on March 13, 2023. REASONS FOR ASSESSMENT OF COSTS BY: AUDREY BLANCHET, Assessment Officer Date: 20230313 Docket: A-224-20 Citation: 2023 FCA 56 Present: AUDREY BLANCHET, Assessment Officer BETWEEN: STÉPHANE LANDRY, NATHALIE GROLEAU, KEVIN GAILLARDETZ‑LANDRY, PIERRE‑OLIVIER BERTHIAUME, SARAH LANDRYLANDRY‑GAGNON, LANDRY‑GAGNON, DAREN SHAREEN LANDRY, LOUISE SAVARD, DENIS LANDRY, NATHALIE BERNARD, NORMAND CORRIVEAU, NORMAND JUNIOR CORRIVEAU, PASCAL BERNARD CORRIVEAU, ANDRE MONTPLAISIR, DANIEL LANDRY, DANIEL ROCHELEAU, EMMANUEL CLOUTIER Appellants and THE BAND COUNCIL OF THE ABÉNAKIS OF WÔLINAK, MICHEL R. BERNARD, RENE MILETTE, LUCIEN MILETTE, CHRISTIAN TROTTIER Respondents REASONS FOR ASSESSMENT OF COSTS AUDREY BLANCHET, Assessment Officer [1] On September 25, 2020, the appellants filed a notice of appeal (A‑224‑20) with respect to an order dated September 15, 2020, dismissing their motion for an interlocutory injunction in file T‑922‑20. On November 2, 2020, the appellants appealed (A‑271‑20) the judgment rendered on October 1, 2020, in consolidated files T‑1139‑19 and T‑1227‑19, whereby the Court dismissed the first application for judicial review (T‑1139‑19) and partially granted the second (T‑1227‑19). On May 19, 2021, the Court heard these two files together, and, in a judgment delivered on October 6, 2021, it dismissed both appeals with costs to the respondents. [2] On February 4, 2022, the respondents filed a bill of costs for the assessment of the costs incurred in this case. On March 14, 2022, the parties received a direction as to the dates for filing their respective written representations. The following documents were filed by the parties for the purpose of this assessment: on April 12, 2022, the respondents filed written representations in support of the bill of costs; on May 13, 2022, the appellants filed written representations in response; and on May 19, 2022, the respondents filed a reply. I. Preliminary issue A. Determination of the level of costs [3] The parties agree that the bill of costs be assessed in accordance with Column III of the table to Tariff B, as set out in rule 407 of the Federal Court Rules, SOR/98‑106 [Rules]. Column III provides a range of units available for most assessable services. The respondents contend that they should be awarded costs at the higher end of Column III in view of the factors set out in subrule 400(3) [factors], in particular: (c) the importance and complexity of the issues; (d) the apportionment of liability; (g) the amount of work; (i) any conduct of a party that tended to unnecessarily lengthen the duration of the proceeding; and (k) whether any step in the proceeding was (i) improper, vexatious or unnecessary. [4] In response, the appellants begin by submitting that the costs should instead be awarded at the lower end of Column III of the table to Tariff B based on the following factors: (c) the importance and complexity of the issues (fundamental rights) and (i) conduct of the parties during the litigation. Further in their written representations, they argue that the imbalance of power between the parties resulting from financial disparity should be considered in the assessment of costs. In short, the appellants are calling upon this Court to exercise its discretion to deny the respondents costs. [5] In their Reply, the respondents further submit that [translation] “the appellants are mistaken about the assessment officer’s role” because the costs have already been awarded (Respondents’ Reply at para. 5). In this respect, they cite Pelletier v. Canada (Attorney General), 2006 FCA 418 at paragraph 7. Since I agree with the respondents’ arguments on this point, it is appropriate to reproduce an excerpt that is relevant to the case at bar: . . . Under section 405, an assessment officer “assesses” costs, which assumes that costs have been awarded. Section 406 provides that an officer does this at the request of “a party who is entitled to costs”, which again presupposes that an order for costs was made in favour of that party. Under section 407, the officer assesses the costs in accordance with column III of the table to Tariff B “unless the Court orders otherwise.” Section 409 provides that “[i]n assessing costs, an assessment officer may consider the factors referred to in subsection 400(3).” In short, the duty of an assessment officer is to assess costs, not award them. An officer cannot go beyond, or contradict, the order that the judge has made. If the judge gives a direction to the officer under section 403, the officer must comply with it. [Emphasis added.] [6] In terms of the importance and complexity of the issues, even though the appellants raised issues relating to the Canadian Charter of Rights and Freedoms, the Court indicated at paragraph 96 of its reasons for judgement that “the appellants . . . have raised essentially the same arguments that they raised unsuccessfully at trial.” Similar observations were made with respect to all the issues (Reasons for Judgment at paras. 63–64, 69, 78, 94, 98–99). For this reason, the appellants have not persuaded me that their grounds of appeal raised complex or important issues and that this factor should be used to justify awarding units at the lower end of Column III. Conversely, the appellants’ erroneous reasoning on this point, combined with the above comments of the Court, instead support the respondents’ position that the appellants may have taken a step at trial that was improper, vexatious or unnecessary (Rule 400(3)(k)(i)). [7] With regard to the financial imbalance, the respondents correctly note that this is not a criterion listed in Rule 400, especially since the Court has previously ruled that this is not a relevant factor in the assessment of costs (Leuthold v. Canadian Broadcasting Corporation, 2014 FCA 174 at para. 12). Indeed, “[i]n an award of costs, neither the ability to pay nor the difficulty of collection should be a deciding factor” (Nike Canada Ltd. et al. v. Jane Doe, [1999] F.C.J. No. 1018, at para. 11). [8] As an assessment officer, I am required to determine the number of units that can be awarded within the full range of units set out in Column III (Rule 407; Hoffman‑La Roche Limited v. Apotex Inc., 2013 FC 1265 at para. 8). The courts have noted time and again that “each item is assessable in its own circumstances and it is not necessary to use the same point throughout in the range for items as they occur in the litigation” (Starlight v. Canada, 2001 FCT 999 at para. 7). Therefore, when determining the number of units to allow for each assessable service, I will have to consider each item separately in conjunction with the specific circumstances of this case and the factors identified above (Bujnowski v. Canada, 2010 FCA 49 at para. 9; League for Human Rights of B’Nai Brith Canada v. Canada, 2012 FCA 61 at para. 15). B. The bill of costs is essentially undisputed [9] Apart from the issue of the level of costs addressed above, the appellants’ written representations contain no submissions specifically dealing with the respondents’ various claims in the bill of costs. Accordingly, the said bill of costs is considered essentially undisputed. [10] In terms of the standard that an assessment officer is required to apply in assessing an undisputed bill of costs, the assessment officer in Dahl v. Canada, 2007 FC 192 [Dahl] stated the following: [2] Effectively, the absence of any relevant representations by the Plaintiff, which could assist me in identifying issues and making a decision, leaves the bill of costs unopposed. My view, often expressed in comparable circumstances, is that the Federal Courts Rules do not contemplate a litigant benefiting by an assessment officer stepping away from a position of neutrality to act as the litigant’s advocate in challenging given items in a bill of costs. However, the assessment officer cannot certify unlawful items, i.e. those outside the authority of the judgment and the Tariff. . . [11] In addition to Dahl, in Merck and Co. v. Apotex Inc., 2006 FC 631 [Merck], the Court concluded as follows: [3] In general a successful party is entitled to recover costs to be assessed on a Column III basis together with disbursements that are reasonable and necessary for the conduct of the proceeding. . . [12] In light of the principles set out in Dahl and Merck, and as a result of the Court’s decision, I will authorize only those costs claimed by the respondents to which they are entitled and which are within the range of units set out in Column III of the table to Tariff B, and all disbursements deemed reasonable and necessary for the proceeding. II. Assessable services [13] The respondents are claiming the amount of $5,437.50 for assessable services. A. Item 18 – Preparation of appeal book [14] The respondents are claiming one unit under Item 18 for the preparation of the appeal book. Since both parties have a duty to ensure that the appeal book is prepared, this claim is allowed (Rule 343(1); Actra Fraternal Benefit Society v. Canada, [2000] F.C.J. No. 1214 at para. 11). B. Item 19 – Memorandum of fact and law [15] The respondents are claiming seven units under Item 19 for the preparation of the memorandum of fact and law. In Column III of the table to Tariff B, the number of units that can be allowed ranges from four to seven. I have reviewed the proceeding while considering the factors in Rule 400(3), and I note that this was not a highly complex matter that would warrant awarding the highest number in Column III. However, the issues were of moderate importance and complexity; a significant amount of work was done to prepare the respondents’ memorandum of fact and law, and the respondents were successful (Rules 400(3)(a), (c) and (g)). I have therefore determined that the above facts support the awarding of six units under Item 19. C. Item 20 – Requisition for hearing [16] The respondents are claiming one unit for preparing and filing a requisition for hearing. After reviewing the record, I note that the requisition for hearing pursuant to Rule 347 was prepared and filed by the appellants. However, in their written representations, the respondents indicate that they [translation] “made a requisition for hearing”, from which it can be inferred that they were involved in the preparation and filing of the requisition for hearing (Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), 2002 FCA 515 at para. 12). The unit claimed under Item 20 is therefore allowed. D. Item 22 – Counsel fee on hearing of appeal: (a) to first counsel, per hour [17] A total of 17.25 units is claimed under Item 22(a), which is equivalent to three units multiplied by the 5.75 hours that the respondents’ lead counsel spent in court during the May 19, 2021 hearing. Since the hearings in file A‑271‑20 and in this file proceeded at the same time, as it appears from the abstract of hearing placed in the record, the respondents would receive double indemnification for their counsel’s attendance in court if units were allowed under Item 22(a) in both cases. Given that 17.25 units were allowed to the respondents in file A‑271‑20, no units will be allowed in this assessment. E. Item 25 – Services after judgment not otherwise specified [18] The respondents’ bill of costs includes a claim for one unit for services after judgment. Given that the appeals in files A‑224‑20 and A‑271‑20 were heard at the same time and that the hearing resulted in a single judgment and reasons, allowing one unit for each of these two files would result in double indemnification. Given that one unit was allowed to the respondents in file A‑271‑20 for the time their counsel needed to review the judgment and explain its implications, no units will be allowed in this assessment. F. Item 26 – Assessment of costs [19] The respondents are claiming six units under Item 26 for services provided to prepare this assessment of costs. I note that, apart from photocopies claimed as disbursements, the respondents’ bill of costs and the parties’ respective written representations are identical to those filed in file A‑271‑20 for the assessment of costs. Therefore, the duplication of proceedings does not justify allowing the six units claimed in this case, especially since five units were allowed in this respect in file A‑271‑20. That said, while a minimal amount of work was done when the second assessment was filed (Rule 400(3)(g)), there is no doubt that the respondents had to take separate actions in the two files. In particular, I am referring to the serving and filing of the bill of costs, the written representations in support of the bill of costs and the respondents’ reply. In light of the foregoing, I am of the view that it is appropriate to allow three units. G. Item 27 – Such other services as may be allowed by the assessment officer or ordered by the Court [20] The respondents are claiming three units under Item 27 for [translation] “services such as numerous exchanges of correspondence and requests for an extension of time . . .” (respondents’ written representations at para. 3). In addition, the respondents indicate in their bill of costs [translation] “Other services; Letter regarding motions and objection following the appellants’ numerous requests; Application for an extension of time;”. The bill of costs further states that [translation] “(t)his correspondence required that the respondents perform additional drafting and research” (respondents’ written representations at para. 17). Item 27 deals with professional services of counsel that are not already provided for in Items 1 to 26 of Tariff B. After reviewing the record, I note that the sole request for an extension of time in the record deals with the filing of the respondents’ memorandum for which consent was filed on February 8, 2021. In my view, no other services rendered by the respondents can be assessed under Item 27 because they have not shown that the services were necessary for the conduct of the proceeding. The claim under this item is disallowed. III. Disbursements A. Photocopies [21] The respondents are claiming $75 for printing photocopies of the appeal book. The respondents’ bill of costs lists 750 printed pages at a cost of 10 cents each. After reviewing the record, I note that this claim reflects the number of copies that the respondents made in this proceeding. The amount of $75 for photocopies is allowed as claimed. IV. Conclusion [22] The respondents’ bill of costs is assessed and allowed in the amount of $1,807.50. A certificate of assessment will be issued for this amount. “Audrey Blanchet” Assessment Officer Certified true translation Margarita Gorbounova, Senior Jurilinguist FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-224-20 STYLE OF CAUSE: STÉPHANE LANDRY et al. v. THE BAND COUNCIL OF THE ABÉNAKIS OF WÔLINAK et al. ASSESSMENT OF COSTS IN WRITING AT OTTAWA, ONTARIO, WITHOUT APPEARANCE OF THE PARTIES REASONS FOR ASSESSMENT BY: Audrey BLANCHET, Assessment Officer DATED: MARCH 13, 2023 WRITTEN REPRESENTATIONS BY: Paul-Yvan Martin For THE APPELLANTS Sébastien Chartrand For THE RESPONDENTS SOLICITORS OF RECORD: Martin, Camirand, Pelletier L.L.P. Montreal, Quebec For the Appellants Larochelle Avocats Montreal, Quebec For the Respondents