PRACTICE |
Cost |
Canada v. IPSCO Recycling Inc.
T-2274-00
2004 FC 1083, Dawson J.
6/8/04
20 pp.
Order rendered on December 23, 2003 dismissing Crown's application for injunctive relief, reserving issue of costs--(1) Respondent's entitlement to recover expert fees related to services performed prior to commencement of application-- Crown erred in relying upon comments of Rouleau J. in RCP Inc. v. Minister of National Revenue, [1986] 1 F.C. 485 (T.D.) in order to argue disbursements pre-dating commencement of application may not be recovered--Entitlement to disburse-ments governed by Federal Court Rules, 1998, Tariff B, s. 1(4)--"Reasonable" disbursement may be incurred prior to commencement of proceeding--Disbursement incurred prior to commencement of application could be recovered if "it is reasonable and it is established by affidavit or by the solicitor appearing on the assessment that the disbursement was made or is payable by the party"--Respondents established disputed disbursements paid--Whether disbursements "reasonable" requiring consideration of whether they ultimately advanced litigation--Evidence establishing respondents prudent when retained experts in December 1998, incurred expense before contemplated enforcement action initiated by Environment Canada--Disputed disbursements incurred in respect of very issues litigated in application, opinions generated by respondents' experts used in application, of significant assistance to Court--Disputed disbursements reasonable within contemplation of Tariff B, s. 1(4)--Respondents entitled to recover them from Crown--Having elected to pursue remedy in Court where cost consequences generally follow result, Crown obliged to pay respondents reasonable disbursements whether or not payable had Crown elected different forum--(2) Respondent's entitlement to additional award of costs in respect of individual respondents--No basis in evidence for liability on part of either individual respondent--Respondents therefore sought additional lump sum award of costs on basis improper, unnecessary to name them as respondents--Abuse of process to name business persons as parties to litigation where no foundation for claim against them in personal capacities--Such conduct may attract increased award of costs--However, such award not appropriate herein for two reasons--First, no evidence respondents incurred significant additional costs as result of addition of individual respondents as parties--Second, that no basis for individual liability not apparent until relatively late stage in proceeding--Failure of Crown to discontinue not sanctioned by award of costs--(3) Respondent's entitlement to double party-and-party costs from date of written settlement offer--In February 2001, respondents offered in writing to settle application--Offers bona fidewithin scope of r. 420, containing genuine element of compromise--None of offers, withdrawn, accepted--Respondents seeking double party-and-party costs from February 12, 2001 until December 23, 2003--Nub of dispute between parties dispute between respective experts about correct science as related to sample selection, methodology--Environment Canada had right to rely upon own sampling, analysis protocol, to refuse to entertain any compromise--However, Environment Canada's adherence to own methods, rejection of respondents' sampling plan and methodology not basis for departing from normal consequences of r. 420--Respondents therefore entitled to double party-and-party costs from date of first settlement offer--(4) Crown's entitlement to global reduction in costs award on basis of mixed success--While respondents succeeded on ultimate question of whether injunction should issue, Crown successful on number of issues surrounding proper interpretation of Act--Crown suggesting award based on 60% measurement of success in favour of respondents appropriate--General rule should be applied so that respondents recover entire costs without reduction--Really only one issue: imposition of injunction--Respondents only raised other arguments as adjunct to fundamental position ASR did not contain PCB material--Distributive award of costs may never be appropriate because such approach at cross-purposes with offer to settle rules: Armak Chemicals Ltd. v. Canadian National Railway Co. (1991), 5 O.R. (3d) 1 (C.A.)--(5) Applicant's entitlement to reduction in award of costs due to public interest in having proceedings litigated--That this was first proceeding brought under Act, s. 311(1) not justifying reduction in costs otherwise due to respondents--No reason for respondents to subsidize by reduced award of costs whatever public interest might exist in having legislation judicially considered--(6) Respondents' entitlement to assessment of costs at top of Column V of table to Tariff B of Rules--Court having full discretionary power over amount of costs--Factors relevant to Court's exercise of discretion: result obtained, amounts at issue in terms of consequences to respondents if unsuccessful, amount of work required, volume, nature of complex technical evidence, importance of issues from legal standpoint--Such factors justifying award of costs based upon Column V--Assessment above mid-point, toward high end of Column V appropriate-- Application not of such legal, factual complexity as to justify assessment at top of Column V--Court awarding lump sum of $60,000 in lieu of costs assessed toward high end of Column V--Federal Court Rules, 1998, SOR/98-106, r. 420, Tariff B, s. 1(4)-- Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 311.