[1993] 1 F.C. 541
A-568-91
National Capital Commission (Appellant) (Respondent)
v.
Mary Bland (Respondent) (Applicant)
and
Privacy Commissioner of Canada and The Information Commissioner of Canada (Interveners)
Indexed as: Bland v. National Capital Commission (C.A.)
Court of Appeal, Pratte, Marceau and MacGuigan JJ.A.—Ottawa, December 10, 1992.
Practice — Costs — Trial Judge awarding solicitor and client costs against NCC to successful applicant and ordering intervener, Privacy Commissioner, to pay one-half thereof — Awarding party and party costs to intervener, Information Commissioner, against NCC and ordering Privacy Commissioner to pay one-third thereof — NCC appealing level of costs awarded — Privacy Commissioner cross appealing contribution part of order — Appeal and cross appeal allowed — Same principles apply to discretionary award of costs under Access to Information Act, s. 53 as to award under R. 344(5)(c) — Award of costs on solicitor and client basis exceptional — Generally awarded only on ground of misconduct connected with litigation — Nothing in reasons suggesting misconduct (either in conduct of or anterior to litigation), bad faith, gross negligence — Consequences of awarding costs on solicitor and client basis such that party against whom award to be made should have opportunity of making representations — Privacy Commissioner participating as intervener pursuant to Court’s order — Merely acting in public interest — Should not have been ordered to contribute to costs as not established participation increasing costs of other parties.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111, Schedule I, ss. 41, 53(1).
Federal Court Rules, C.R.C., c. 663, R. 344(5)(c) (as am. by SOR/87-221, s. 2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Amway Corp. v. The Queen, [1986] 2 C.T.C. 339 (F.C.A.).
APPEAL from award of costs on solicitor and client basis; cross appeal from order requiring intervener to contribute to costs (Bland v. National Capital Commission, [1991] 3 F.C. 325; (1991), 36 C.P.R. (3d) 289; 41 F.T.R. 202 (T.D.)). Appeal and cross appeal allowed.
COUNSEL:
Margaret N. Kinnear for appellant (respondent).
Richard G. Dearden for respondent (applicant).
Simon Noël for intervener (The Privacy Commissioner of Canada).
D. Brunet for intervener (The Information Commissioner of Canada).
SOLICITORS:
Deputy Attorney General of Canada for appellant (respondent).
Gowling, Strathy & Henderson, Ottawa, for respondent (applicant).
Noël, Berthiaume, Aubry, Hull, Quebec, for intervener (The Privacy Commissioner of Canada).
Office of the Information Commissioner of Canada, Ottawa, for the intervener (The Information Commissioner of Canada).
The following are the reasons for judgment of the Court delivered orally in English by
Pratte J.A.: On May 17, 1991, the Trial Division (Muldoon J.) granted an application made by the respondent Mary Bland [[1991] 3 F.C. 325 (abridged); (1991), 36 C.P.R. (3d) 289] under section 41 of the Access to Information Act [S.C. 1980-81-82-83, c. 111, Schedule I] for an order requiring the Chairman of the National Capital Commission to disclose to her the addresses of all the residential properties leased by the Commission as well as the names of the tenants and the rent paid by each of them. By its order, the Court, after directing the Chairman of the National Capital Commission to disclose the information requested by Ms. Bland, disposed of the question of costs in the following manner:
this court further orders and adjudges that the applicant Mary Bland may, and hereby does, have judgment for the sum of money representing her solicitor-and-client costs of, and incidental to, these proceedings, payable forthwith after taxation thereof, by the National Capital Commission, which, in turn, may, and hereby does, thereupon have judgment for one half of the total sum which it has paid as and for Mary Bland’s said costs, over against the Privacy Commissioner, intervener herein, payable forthwith by the latter; and
this court further orders that the intervener, the Information Commissioner may, and hereby does, have judgment for the sum of money representing that intervener’s party-and-party costs of, and incidental to, these proceedings, payable forthwith after taxation thereof, by the National Capital Commission, which, in turn, may and hereby does, thereupon have judgment for one-third of the total sum which it has paid as and for the Information Commissioner’s said costs, over against the Privacy Commissioner, the other intervener herein, payable forthwith by the latter; but although the Court hereby establishes the principle that the Information Commissioner and the Privacy Commissioner are not ineligible to receive costs nor immune from paying costs, the Information Commissioner is not hereby ordered to enforce this judgment for costs, but may justifiably and legally do so, as the said Commissioner deems expedient in all the circumstances.
The National Capital Commission appeals from that part of the order which requires it to pay Ms. Bland’s costs on a solicitor and client rather than on a party and party basis. The Privacy Commissioner, an intervener in first instance, cross appeals from those parts of the order requiring him to pay to the Commission part of the costs that it is ordered to pay to Ms. Bland and the Information Commissioner.
We are all of opinion that the appeal and the cross appeal must succeed.
Pursuant to subsection 53(1) of the Access to Information Act,
53. (1) … 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.
In disposing of Ms. Bland’s application, therefore, the Court had the discretion to allow costs on a solicitor and client basis. That discretion, however, was not different from that which Rule 344(5)(c) [Federal Court Rules, C.R.C., c. 663 (as am. by SOR/87-221, s. 2)] confers on the Court and had to be exercised on the basis of the same principles.
It is now settled that, as Mahoney J.A. said in the Amway[1]. case:
Costs as between solicitor and client are exceptional and generally to be awarded only on the ground of misconduct connected with the litigation.
As the Judge did not expressly give any reasons in support of his order as to costs, we must try to glean from his lengthy reasons for judgment the motives that incited him to order as he did.
It should be first observed that, if the Judge acted on the view he expresses at page 321 C.P.R. that the Court is given a wide discretion in the matter of costs “in order to help de-condition mandarins’ reflexes”, he certainly acted on a wrong principle. The courts must render justice; their function is not to reform the public service.
The award of costs on a solicitor and client basis was not justified by any misconduct in the conduct of litigation. That is clear. Moreover, the lengthy reasons of the Judge below fail to disclose any misconduct anterior to the litigation that could be imputed to the Commission and be considered as sufficiently serious and as having a close enough connection with the litigation to warrant such an award. True, the Judge attached much importance to the fact that the Chairman of the Commission, before acceding to that function, had spread the rumour that the Commission had leased properties for less than their rental value to friends of the government of the day. But that fact was irrelevant to the proceedings before the Court and should not have influenced its decision.
True, also, the reasons for judgment reveal that, in the Judge’s opinion, the Chairman of the Commission had not properly determined, as the statute required her to do, whether the public interest demanded that the information sought by Ms. Bland be disclosed. Such a finding, however, (assuming it to be accurate) is not a justification for the order under attack as there is no suggestion that the Chairman either acted in bad faith or was even grossly negligent (assuming that gross negligence on her part would have justified the order of the Judge).
We cannot find in the reasons given in support of the order any valid motive to award Ms. Bland her costs on a solicitor and client basis. The order under attack will therefore be modified accordingly.
Before leaving this aspect of the case, we wish to stress that the consequences of an award of costs on a solicitor and client basis are so serious that such an order should not be made without giving the party or parties against whom the award is to be made the opportunity to make representations on the subject. In this case the appellant and cross appellant were not given that opportunity.
The cross appeal of the Privacy Commissioner should also succeed. He participated in the proceedings in the Trial Division as an intervener pursuant to an order made by the Associate Chief Justice. If, in many instances, the participation of interveners in judicial proceedings is motivated by their desire to protect their own interest, such was not the case here. The Privacy Commissioner was merely acting in the public interest; for that reason, he should not have been ordered to pay costs as it was not established that his participation in the proceedings had increased the costs of the other parties.
The appeal will therefore be allowed and the order of the Trial Division will be modified by substituting for paragraphs number 2 and number 3, the following two paragraphs:
2.
the court further orders and adjudges that the respondent shall pay the party and party costs of the applicant Mary Bland; and
3.
the court further orders and adjudges that the National Capital Commission shall also pay the party and party costs of the Information Commissioner if those costs are demanded.
The National Capital Commission shall be entitled to its costs of the appeal.