Carpenter Fishing Corp. v. Canada
A-941-96 / T-554-91 / T-974-91
Stinson T.O.
23/3/99
24 pp.
Plaintiffs (respondents) sought declaration "current owner restriction" in catch history allocation as policy, general guideline for quota system for halibut fishing on Canada's west coast unlawful-By agreement, Trial Judge split hearing into two parts: issue of legality, relief-Trial Judge found in favour of respondents on legality issue-Federal Court of Appeal allowed appeal, dismissed actions, awarded appellants (defendants) costs there and below-Supreme Court of Canada dismissed respondents' application for leave to appeal, application for reconsideration of leave decision-Appellants filed single bill of costs for all three proceedings-(1) Whether Trial Judge should conduct assessment, and whether assessment should be conducted orally-Federal Court Rules, 1998, r. 2 defining "assessment officer" as judge, prothonotary or referee and "officer of Registry designated by an order of the Court"-Latter phrase source of assessment officer's authority to assess costs-Rr. 2, 405 not specifying how assignments to assess costs to occur-Silent as to jurisdiction to decide on issue of assignment to Trial Judge-But TRW Inc. v. Walbar of Canada Inc. (1992), 146 N.R. 57 (F.C.A.); C.N.R. v. Industrial Estates Ltd. (1987), 9 F.T.R. 118 (F.C.T.D.); Smerchanski v. Minister of National Revenue, [1979] 1 F.C. 801 (C.A.); Hillsdale Golf & Country Club Inc. v. R., [1979] 1 F.C. 809 (T.D.), predicated on Rules no longer in effect, holding Judge would assess costs only in exceptional circumstances-Nothing in new Rules suggesting this principle not still applicable-New Rules maintaining practice of officers of Registry conducting assessments of costs-Nothing in materials requiring Trial Judge to take this assessment to exclusion of other assessment officers-(2) Whether costs presented excessive-Summary of submissions concerning r. 400(3) factors (importance, complexity of issues; apportionment of liability; amount of work; whether public interest in litigation justifying particular award of costs; conduct of party affecting length of litigation) Court may consider in exercising discretion in awarding costs-R. 409 permitting assessment officer to consider r. 400(3) factors-To reflect challenges as litigation unfolds, items in Tariff B should be seen as discrete, assessable within own circumstances-R. 409 not requiring same point in range of units be assigned for all items in bill of costs eg. difficult pleadings, discoveries may attract greater units than straightforward trial-Contrast between trial, appeal judgments may be indicative of difficulties in framing issues, but not necessarily determinative of value to be assigned-Regional matter with some larger implications-Few, if any, issues fell away before trial-Not many individual fishers with resources to pursue altruistic tilts at authority-Plain reading of provision in Table to Tariff B, item 7 (discovery of documents) not supporting discrete allowance for each of aggregate of parties grouped in single proceeding-Provides single indemnity for however many causes of action advanced-Given order consolidating actions, two claims not allowed-Use of indefinite article "an" in introductory words for item 8 (preparation for an examination. including examinations for discovery, on affidavits) permitting separate claim for preparation for each examination conducted-Passage of time alone not persuasive, in circumstances, claim for fresh preparation warranted each time parties returned to individual-If amendments to pleadings, unfolding of associated issues generated fresh causes of action necessitating such preparation, appellants had to confirm case as advanced by each party-For item 9 (attending on examinations, per hour), Tariff B1(2) (content of bill of costs) should not be construed so narrowly as to yield result inconsistent with apparent effort indicated by record-Materials not elaborating on nuances of difficulty associated with discoveries-Consistent with principle of partial indemnity, and given appellants incurred costs for counsel to attend, circumstances not so exceptional as to warrant zero units-No adverse inference drawn from series of discoveries culminating on eve of trial as could be indicative of difficulty of litigation-For items 14 (counsel fee per hour in Court), 15 (preparation, filing of written argument), threshold for proof in Tariff B1(2) not requiring result inconsistent with Court's own record-Appellants searched Court's records to confirm number of hours claimed for various hearings-Available range for item 14 requires broad distinction between upper, lower assignment for service-As appellants had difficulties as case unfolded before Trial Judge, maximum allowed-Intervener brought application to stay trial judgment until disposition of appeal as function of respondents achieving erroneous result at trial ultimately overturned on appeal with finding whole action misconceived with costs against intervener-As order required intervener to bear costs, nothing allowed-Re: units claimed under item 19 (memorandum of fact and law), 20 (requisition for hearing), 22 (counsel fee on hearing of appeal), Briere v. Canada (Employment & Immigration Commission) (1986), 10 F.T.R. 80 (F.C.T.D.), holding no costs should be awarded for judgment not based on any arguments raised by parties, not applicable to amount of costs as Court already deciding on scale of costs-Work preceding hearing establishing record by which Federal Court of Appeal having little apparent difficulty in setting aside trial judgment-Re: disbursements, discoveries benefit litigants and Court by isolating and focusing issues-Costs allowed-R. 343, addressing transcripts to be included in appeal book, setting out more general parameters than apparently more restrictive ones in old R. 1206(3)(a)-Amounts removed for transcript of opening at trial as verbal testimony, reasons sufficient, and for transcript of argument by appellants and Trial Judge's closing comments-Bill of costs presented at $91.067.45 allowed at $60,336.09-Federal Court Rules, 1998, SOR/98106, rr. 2, 343, 400(3), 403, 405, 409, Tariff B (Table)-Federal Court Rules, C.R.C., c. 663, R. 1206(3)(a).