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Federal Court
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Cour fédérale
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Date: 20090811
Docket: T-727-08
Citation: 2009 FC 816
Ottawa, Ontario, August 11, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ABOUSFIAN ABDELRAZIK
Applicant
and
THE MINISTER OF FOREIGN
AFFAIRS
and THE ATTORNEY GENERAL OF CANADA
Respondents
SUPPLEMENTAL REASONS FOR
JUDGMENT AND JUDGMENT
[1]
In
my Reasons for Judgment dated June 4, 2009, I remained seized should the
parties be unable to agree upon appropriate safe travel arrangements to return
Mr. Abdelrazik to Canada within 30 days. He was ordered to appear before me at
the Court in Montreal, on Tuesday, July 7, 2009. Costs of the application were
reserved to be dealt with after receipt of submissions from the parties.
[2]
The
further involvement of this Court was not required as the Government of Canada
issued the required travel document and made appropriate arrangements for Mr.
Abdelrazik’s return to Canada. He appeared before me in Montreal, on July 7,
2009.
[3]
The
Court has now received the parties’ submissions concerning costs. These are my
Supplemental Reasons on that last remaining outstanding issue.
The Position of the
Parties
[4]
The
applicant is seeking solicitor-client costs, set as a lump sum in the amount of
$127,600.00, inclusive of fees, disbursements and GST. It is submitted that
solicitor-client fees were incurred of $116,294.00, plus GST, and disbursements
of $5,501.52.
[5]
The
applicant advances a number of factors in support of his claim, including the
following:
(a)
“Complex
and novel issues of constitutional and international law were central to the
case, and the importance of the matter to the [a]pplicant cannot be
overstated”;
(b)
“[T]he
[a]pplicant enjoyed overwhelming success in the application, with serious
findings that the [r]espondents acted in bad faith and violated his
constitutional rights”;
(c)
There
was a written offer to settle delivered early in the litigation that was
rejected by the respondents;
(d)
Counsel
was required to spend a considerable amount of time communicating with the
applicant by telephone “to build and maintain trust” and “to keep his spirits
up as he was living in a very trying environment”.
[6]
The
applicant was represented by five lawyers throughout and at various stages of
the application. Their names, year of call and hourly billing rates are as
follows:
i.
Yavar
Hameed (2001) - $180
ii.
Audrey
Brousseau (2008) - $125
iii.
Khalid
Elgazzar (2006) - $135
iv.
Paul
Champ (2000) - $225
v.
Amir
Attaran (1999) - $225
[7]
All
but Mr. Attaran appeared at the hearing of this application which occurred over
two days. Mr. Attaran is a law professor and the Court was advised that “he
will not be billing for his fees, although his time is being claimed” in the
draft bill of costs.
[8]
As
an alternative submission to his claim for solicitor-client costs throughout,
the applicant submits that he ought to be entitled to recover party-party costs
to the date of the settlement offer and solicitor-client costs thereafter, in a
lump sum of $97,000, inclusive of fees, disbursements and GST. In the further
alternative, he seeks party-party costs throughout in the amount of $78,766.00,
being 60% of legal fees and GST plus full reimbursement of disbursements.
[9]
The
respondents submit that the appropriate award of costs is in accordance with
Column III of Tariff B of the Federal Courts Rules. They submit that
this is not one of those rare and extraordinary circumstances where an award of
solicitor-client costs is appropriate.
[10]
The
respondents further submit that it is relevant that all counsel for the
applicant were providing there services on a pro bono basis and, as a
result, the Court in making any award of costs is not compensating Mr.
Abdelrazik for actual legal costs incurred by him.
[11]
They
further submit that the hours claimed by counsel for the applicant is excessive.
For example, they submit that there is an excessive amount of hours claimed
because, in some instances, more than one counsel was involved unnecessarily. As
an illustration they point to the hearing where four lawyers were present
although only two made oral submissions. They also point to the excessive
preparation time for cross-examinations on affidavits that resulted from more
than one counsel conducting the examinations. They also raise questions as to
the appropriateness of some of the claimed disbursements, suggesting that some
of the claimed disbursements relate to other disputes between the applicant and
the Government of Canada.
[12]
The
respondents also object to the inclusion of time spent that was not actually
and directly related to the litigation. In this respect the additional hours
spent communicating with Mr. Abdelrazik on a daily basis is resisted.
[13]
They
also point out that costs of pre-hearing motions have been previously
determined to be costs in the cause and submit, on the basis of the decision of
the Court of Appeal in Merck & Co. v. Apotex Inc. (2006), 354 N.R.
355, 2006 FCA 324, that I have no discretion to vary the default scale for
these matters.
[14]
Lastly,
they submit that the settlement offer had expired on September 15, 2008, and
contained no element of compromise and, as such, should be given no
consideration.
[15]
The
Respondents submit that the maximum allowable award of costs under Column III
of Tariff B is $24,827.40. Alternatively, they submit that if costs are fixed
in accordance with the upper end of Column IV (save for costs associated the
interlocutory motions which were fixed in accordance with Column III), the
costs should be fixed at $35,683.20. They submit that disbursements properly
incurred total an additional $3,380.93.
Analysis
[16]
An
award of costs is not an exact science; it is to be made on a principled basis.
As the respondents have submitted, the usual practice in this Court is to award
costs on the basis of Column III of Tariff B. However, Rule 400(4) of the Federal
Courts Rules permits the Court to award “a lump sum in lieu of, or in
addition to, any assessed costs.”
[17]
There
is a significant advantage to the parties when the Court makes a lump sum award
of costs, namely the savings in costs that would otherwise be incurred in the
assessment process. In
this case I am of the view that a lump sum
award is appropriate, given the detailed submissions of the parties and the
unique circumstances of this case.
[18]
Rule
400(3) sets out factors that the Court may consider in making an award of
costs, as follows:
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400.(3) In exercising its discretion under subsection (1),
the Court may consider
(a) the result of the proceeding;
(b) the amounts claimed and the amounts recovered;
(c) the importance and complexity of the issues;
(d) the apportionment of liability;
(e) any written offer to settle;
(f) any offer to contribute made under rule 421;
(g) the amount of work;
(h) whether the public interest in having the
proceeding litigated justifies a particular award of costs;
(i) any conduct of a party that tended to shorten
or unnecessarily lengthen the duration of the proceeding;
(j) the failure by a party to admit anything that
should have been admitted or to serve a request to admit;
(k) whether any step in the proceeding was
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive
caution;
(l) whether more than one set of costs should be
allowed, where two or more parties were represented by different solicitors
or were represented by the same solicitor but separated their defence
unnecessarily;
(m) whether two or more parties, represented by
the same solicitor, initiated separate proceedings unnecessarily;
(n) whether a party who was successful in an
action exaggerated a claim, including a counterclaim or third party claim, to
avoid the operation of rules 292 to 299; and
(o) any other matter that it considers relevant.
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400.(3) Dans l’exercice de son pouvoir discrétionnaire en
application du paragraphe (1), la Cour peut tenir compte de l’un ou l’autre
des facteurs suivants :
a) le
résultat de l’instance;
b) les
sommes réclamées et les sommes recouvrées;
c)
l’importance et la complexité des questions en litige;
d) le
partage de la responsabilité;
e) toute
offre écrite de règlement;
f) toute
offre de contribution faite en vertu de la règle 421;
g) la
charge de travail;
h) le fait
que l’intérêt public dans la résolution judiciaire de l’instance justifie une
adjudication particulière des dépens;
i) la
conduite d’une partie qui a eu pour effet d’abréger ou de prolonger
inutilement la durée de l’instance;
j) le
défaut de la part d’une partie de signifier une demande visée à la règle 255
ou de reconnaître ce qui aurait dû être admis;
k) la
question de savoir si une mesure prise au cours de l’instance, selon le cas :
(i) était
inappropriée, vexatoire ou inutile,
(ii) a été
entreprise de manière négligente, par erreur ou avec trop de circonspection;
l) la
question de savoir si plus d’un mémoire de dépens devrait être accordé
lorsque deux ou plusieurs parties sont représentées par différents avocats ou
lorsque, étant représentées par le même avocat, elles ont scindé inutilement
leur défense;
m) la
question de savoir si deux ou plusieurs parties représentées par le même
avocat ont engagé inutilement des instances distinctes;
n) la
question de savoir si la partie qui a eu gain de cause dans une action a
exagéré le montant de sa réclamation, notamment celle indiquée dans la
demande reconventionnelle ou la mise en cause, pour éviter l’application des
règles 292 à 299;
o) toute
autre question qu’elle juge pertinente.
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[19]
Some
of these factors have been specifically addressed by the parties in their
submissions and have been considered in the costs award that follows.
Importance and
Complexity of the Issues
[20]
The
importance of the litigation to Mr. Abdelrazik is obvious. Absent a favourable
ruling he may well have found himself in Sudan and a resident of the Canadian
Embassy for the reminder of his days. Moreover, the issue of the rights of a
Canadian citizen to enter Canada and the obligations
of the Government of Canada to issue
travel documents to facilitate that return is an issue of importance to all
Canadians.
[21]
The
issues were also complex involving an analysis and understanding of legislation
including the Canadian Charter of Rights and Freedom, United
Nations Security Council Resolution 1822, and Canadian Passport Order
S1-81-86, as well as a consideration of the international obligations of Canada
with respect to UN determinations, the interplay of domestic and international
law, and the Royal prerogative.
[22]
This factor points to an increased award of costs.
Conduct of the
Respondents
[23]
Where
the conduct of a party has been reprehensible, scandalous or outrageous, an
award of solicitor-client costs may be appropriate: Young v. Young,
[1993] 4 S.C.R. 3.
[24]
The
applicant relies on the findings, on the record before the Court, that CSIS was
complicit in his detention in Sudan and that the respondents were continually
moving the goal posts as he attempted to return to Canada, as a basis for an
award of solicitor-client costs. I do not accept this submission.
[25]
The
relevant conduct, in the context of a costs award, is conduct in the course of
the litigation – it is litigation misconduct – it is not the conduct that gave
rise to the litigation. If that
were the proper test then virtually all
litigation would meet the test. As Mr. Justice Gibson observed in Jaballah
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1182, at para.
16:
…[W]here, as here,
a party seeks solicitor-and-client costs, the Court must bear in mind that such
costs are awarded only in rare instances and where the party against whom
solicitor-and-client costs are sought has demonstrated in his conduct of the
proceeding "scandalous" or "outrageous" behaviour, or
misconduct that is "deserving or reproof or rebuke".
(emphasis added)
[26]
The
applicant has raised only two suggested improprieties with respect to the respondents’
conduct of the litigation and neither warrants costs on a solicitor-client
basis.
[27]
The
first relates to questions put to the applicant during his cross-examination
and, in particular, relates to questions that were alleged to suggest that his
wounds were self-inflicted rather than the result of torture. In circumstances
where the applicant had not once previously alleged that he was tortured, these
were proper. Further, counsel would have failed her client had she not raised
them.
[28]
The
second relates to an allegation that the respondents delayed producing
documents requested in a Direction to Attend. I fully accept the submission of
the respondents that any delay that was occasioned was as a direct result of
the breadth of the documents sought by the applicant. In the end there was no
complaint at the hearing that insufficient documents had been produced. The
applicant suffered no prejudice from any alleged delay in production.
[29]
Accordingly,
I find that there was no litigation misconduct that would point to an increased
award of costs.
Pro Bono
[30]
The
respondents submit that as counsel for the applicant were acting pro bono
and the applicant was not exposed to the risk of paying legal costs throughout
the litigation (as the respondents did not seek costs in the various
interlocutory motions, the appeal in which they were successful, and in the
main application) an award of costs under Column III of Tariff B is
appropriate.
[31]
I
can see no principled basis to outright refuse an order for costs solely on the
basis that counsel agreed to act pro bono. Counsel in this instance, taking
on Mr. Abdelrazik’s case in circumstances where he was unable to do so
personally and was impecunious, conducted themselves in the best tradition of
the Bar. I agree with and endorse the observations of the Ontario Court of
Appeal in 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R.
(3d) 757, at para. 35, that there are positive consequences to having pro
bono counsel receiving some reimbursement for their services from the
losing party:
… [A]llowing pro bono parties
to be subject to the ordinary costs consequences that apply to other parties
has two positive consequences: (1) it ensures that both the non-pro bono party
and the pro bono party know that they are not free to abuse the system without
fear of the sanction of an award of costs; and (2) it promotes access to
justice by enabling and encouraging more lawyers to volunteer to work pro bono
in deserving cases. Because the potential merit of the case will already factor
into whether a lawyer agrees to act pro bono, there is no anticipation that the
potential for costs awards will cause lawyers to agree to act only in cases
where they anticipate a costs award.
[32]
However,
as the costs awarded belong to the successful party and not his counsel, the
Court, in my view, should only make an award of costs if satisfied that there
is an arrangement between the litigant and his counsel that any costs awarded
will be paid over to the counsel. Absent such a payment over, the litigant would
be unjustly enriched by an award of costs. As was noted by Justice
Layden-Stevenson, as she then was, in AB Hassle v. Genpharm Inc., 2004
FC 892, at para. 15, “Costs should be neither punitive nor extravagant.” An award
of costs to a party litigant who keeps those funds when he has incurred no
costs would be extravagant and unjust.
[33]
In
this case, Mr. Hameed advised the Court that Mr. Abdelrazik has agreed that any
costs awarded will be paid to his counsel, save and except for Mr. Attaran, who
has agreed to forgo any payment for his services, and that Mr. Abdelrazik will
retain nothing. That being the case, it is appropriate to make an award of
costs notwithstanding that counsel were acting pro bono, except that it
is not appropriate to make any award with respect to services provided by Mr.
Attaran, as doing so, in my view, would be unjust and unfair.
Offer to Settle
[34]
The
applicant did make an offer to settle. There is no dispute that the offer is
not valid for the purposes of a double cost award under Rule 420; however,
pursuant to Rule 403(3) it may be considered even though it expired prior to
the hearing.
[35]
The
applicant challenges the respondents’ assertion that there was no element of
compromise in the offer, submitting that he would have forgone any costs had it
been accepted. This element of alleged compromise in the circumstances of this
case, given the timing of the offer, was minimal; however it should not be
ignored.
[36]
I
find that the offer is a relevant consideration in fixing an award of costs
under Rule 400(3). I do not, however, in the circumstances of this case, give
much significance to the offer. In large part the offer reflected exactly the
remedy sought. While the applicant was prepared at that early stage of the
litigation to forgo his costs, it cannot be ignored that this was in the
context of pro bono proceedings where he was personally giving up
nothing – it was his lawyers who were prepared to forgo compensation.
The Appropriateness of
Claimed Time and Disbursements
[37]
In
my view, the applicant’s draft bill of costs included time that is not properly
compensable in an award of costs. I have no reason to doubt the sincerity of
counsel when he states that daily contact with Mr. Abdelrazik was important to
develop his trust and provide contact in his unique circumstances. However, it
was not directly related to the litigation and it would be punitive to consider
that time in the context of an order for costs.
[38]
I
am also of the view that some time claimed is not appropriate even though it
has a direct bearing on the litigation. Not even the most complex case often justifies
having four counsel paid for attending the hearing, especially when only two make
oral submissions. The Court does not
question that the silent counsel were of
assistance to main counsel; however, it is not a cost the respondents ought to
bear.
[39]
Although
it would no doubt have resulted in less time spent had all of the
cross-examinations been done by one lawyer rather than many, it is not appropriate
for the respondents or this Court to dictate how pro bono counsel managed
the case. In such circumstances it is more likely that the work would be shared
– spreading the personal costs of the lawyers rather then unduly burdening
one. This would necessarily result in some duplication. In these
circumstances the duplication was warranted.
[40]
Some
of the disbursements related to daily telephone calls are not properly
compensable. Without a time consuming analysis of each call it is not possible
to be precise as to the amount of disbursements that ought to be allowed;
however, these costs were minimal and the vast majority of the claimed
disbursements are properly compensable.
Conclusion
[41]
I
agree with the respondents that this is not a case where solicitor-client costs
are justified. On the other hand, there is merit to the applicant’s submission
that the stakes were high for him personally and that there were very complex
legal issues at play.
[42]
The
amount of work done by counsel was evident from the volume of evidence placed
before the Court as well as the thoughtful submissions made both in writing and
orally. It is deserving of more than an award of costs on Column III of Tariff
B.
[43]
I
am of the view that the award of costs in this proceeding must reflect the
complexity and importance of the issues raised and the significant work done by
counsel directly related to the application as well as the fact that they were
largely successful.
[44]
Recognizing
that an award of costs is a matter of principled judgment, and considering the
submissions and the factors discussed above, in the exercise of my discretion,
I fix costs on a lump sum basis in the amount of $47,500.00 inclusive of fees, disbursements
and GST, to be paid to the applicant by the respondents. Given the advice of
Mr. Hameed as to the agreement in place with Mr. Abdelrazik, the costs awarded
are to be paid by the respondents only after Mr. Abdelrazik provides a written
direction to the respondents that the costs awarded to him hereby are to be
paid directly to the law firm Hameed Farrokhzad Elgazzar Brousseau, in Trust
for Yavar Hameed, Khalid Elgazzar, Audrey Brousseau and Paul Champ.
JUDGMENT
IT IS HEREBY ORDERED AND
ADJUDGED THAT costs are fixed on a
lump sum basis in the amount of $47,500, inclusive of fees, disbursements and
GST to be paid to the applicant by the respondents after Mr. Abdelrazik
provides a written direction to the respondents that the costs awarded to him
hereby are to be paid directly to the law firm Hameed Farrokhzad Elgazzar
Brousseau, in Trust for Yavar Hameed, Khalid Elgazzar, Audrey Brousseau and
Paul Champ..
“Russel W. Zinn”
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