Date: 20040310
Docket: T-1354-97
Citation: 2004 FC 366
BETWEEN:
DAVID WILLIAM LORD, LORRAINE ELOUISE LORD
VERA HANNAH LORD, CORALEE REBECCA LORD,
DAWN ANDREA LORD, DERIK CHRISTOPHER LORD
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
Assessment Officer
[1] In 1997, the Plaintiff, Derik Christopher Lord (hereafter "Derik Lord"), was an inmate at Kent Institution in British Columbia. The other five Plaintiffs are members of his family: his father, David William Lord (hereafter "David Lord"); his mother, Lorraine Elouise Lord (hereafter "Elouise Lord"); his sisters, Coralee Rebecca Lord and Dawn Andrea Lord (hereafter "Coralee Lord" and "Dawn Lord" respectively) and his grandmother, Vera Hannah Lord (hereafter, "Vera Lord"). This action, for damages further to an incident during a private family visit at Kent Institution, was allowed in part with damages of $500.00, $1,000.00, $2,000.00 and $2,000.00 to Elouise Lord, Coralee Lord, Dawn Lord and Vera Lord respectively. Paragraph [195] of the judgment, reported at [2001] F.C.J. No. 640, concluded that these four Plaintiffs (hereafter the "Four Plaintiffs."), "as self litigants, are not entitled ... to counsel fees, however they are entitled to disbursements such as, for example, photocopy charges, travel expenses, witness fees, miscellaneous items such as transcript, postage and long distance telephone calls." The Court decided that Derik Lord was not entitled to damages, but did not award any costs as against him. The Court rejected David Lord's claims and awarded costs to the Defendant as against him.
[2] I issued a timetable for written disposition of the assessment of the costs of the Four Plaintiffs. Elouise Lord, as was the pattern throughout this litigation, appeared to take charge of the organization and submission of materials for the Four Plaintiffs. The initial materials impelled me to issue formal directions to the Four Plaintiffs cautioning them that the requirements of the Rules for practice and procedure must be met, ie. proper service, lay people cannot purport to provide legal representation for one another, details of expenditures, manner of proof, form of affidavits etc. The materials advanced are indicative of self-represented litigants struggling with legal process.
[3] The Four Plaintiffs advanced three bills of costs. The first (hereafter the "June 26, 2003 bill"), exhibited to an affidavit with no supporting invoices, claimed costs under thirteen headings: Coralee Lord ($2,342.00), Dawn Lord ($822.95: corrected figure because $179.52 inadvertently not included from miscellaneous costs), Vera Lord ($530.42) and Elouise Lord ($17,505.78). The individual awards of damages were unnecessarily included in this bill of costs and, for Elouise and Coralee Lord, incorrectly listed.
[4] Further to the Four Plaintiffs' request for an extension of time, they signed and submitted a Joint Bill of Costs (hereafter the "August 11, 2003 Joint Bill) plus written submissions and a supporting affidavit. The August 11, 2003 Joint Bill differed from the June 26, 2003 bill in that, for Elouise Lord, travel costs increased to $1,550.00 from $150.60 and photocopy costs increased to $27,562.50 (78,750 copies @ $0.35 per page) from $9,866.85 (28,191 copies @ $0.35 per page) resulting in a total claim increasing to $40,296.20 from $21,201.15 for the Four Plaintiffs. As well, the amounts for damages, although still unnecessary, were corrected. It was not readily apparent that the August 11, 2003 Joint Bill and associated materials were served on the Defendant. However, the letter dated September 17, 2003, from counsel for the Defendant, referred to a paragraph 14 of an affidavit by Elouise Lord (sworn May 21, 2003: this affidavit is identical to her previous affidavit sworn May 21, 2003 and submitted with the June 26, 2003 materials, save for the addition of a paragraph 14) promising production of receipts. As well, subsequent written submissions on behalf of the Defendant referred to a claim for 78,750 copies. Both references were particular to the August 11, 2003 materials, notwithstanding the reference in the September 17, 2003 letter to a claim for costs of approximately $21,000.00 by the Four Plaintiffs particular to the June 26, 2003 bill. All of this indicates that counsel for the Defendant was addressing the August 11, 2003 Joint Bill. The September 17, 2003 letter also asserted that each party should submit an individual bill of costs with receipts. The court record discloses an ensuing series of directions, either in response to the Four Plaintiffs' requests for extensions of time or in response to correspondence from the Defendant asserting non-compliance, all designed to induce the Four Plaintiffs to perfect their materials with particular regard to the promised production of receipts. These directions included instructions addressing the manner of proof of the intended receipts and a caution to the Four Plaintiffs that rebuttal materials cannot raise new matters and must be confined to responses to those matters raised in the Defendant's reply materials.
[5] Elouise Lord wrote on November 10, 2003, expressing concern about the sufficiency of notice of directions and correspondence and asserting that, if given yet another time extension, she could perfect the materials by November 27, 2003. Counsel for the Defendant, by letter dated November 13, 2003, disagreed with the Four Plaintiffs' assertions concerning notice and urged that, given several extensions to date, no further extensions be given. On November 24, 2003, I issued directions extending the time limits yet again (December 4, 2003, for the Four Plaintiffs to perfect their materials, December 30, 2003, for Defendant's reply materials and January 23, 2004, for the Four Plaintiffs' rebuttal materials). These directions specifically noted that "the Plaintiffs have an obligation to act in a manner that permits their adversary in litigation to achieve closure of outstanding issues in a reasonable time frame" and therefore the December 4, 2003 deadline is peremptory and the Four Plaintiffs should govern themselves accordingly. These directions were left by voice mail with Elouise Lord and mailed to her, both on November 24, 2003.
[6] Elouise Lord wrote on December 3, 2003, asserting that she had received the directions on December 2, 2003, and requesting another extension for a variety of reasons. Counsel for the Defendant (letter dated December 9, 2003) noted the peremptory provision, opposed any extension and confirmed his intent to meet the December 30, 2003 deadline notwithstanding the Four Plaintiffs' failure to produce documents. I did not issue any directions and instead let the last timetable stand. The Defendant met the deadline for reply materials, but the Four Plaintiffs, as was their pattern throughout, missed the deadline for rebuttal materials. On January 26, 2004, they tendered materials which included written submissions, a thick document of receipts and a Joint Bill of Costs amended as of December 20, 2003. The Defendant asserted that production of these materials missed several deadlines, including the final peremptory deadline and, given that the reply materials were formulated without access to these latest materials, should not be considered. I have instructed the Registry to return the January 26, 2004 materials unfiled. They were not in the nature of rebuttal, but rather were materials in chief and would have unfairly prejudiced the Defendant who prepared reply materials without the benefit of access to materials which should have been part of the August 11, 2003 materials.
[7] However, notwithstanding the Defendant's expressed objection to so proceeding, I will permit individual Plaintiffs to pursue costs via the August 11, 2003 Joint Bill. I do so as a function of my view, often expressed further to my approach in Grace M. Carlile v. Her Majesty the Queen (1997), 97 D.T.C. 5284 at 5287 (T.O.) and the sentiment of Lord Justice Russell in Re Eastwood (deceased) (1974), 3 All. E.R. 603 at 608, that assessment of costs is "rough justice, in the sense of being compounded of much sensible approximation", that discretion may be applied to sort out a reasonable result for costs. Further, consistent with Rule 3 and my sentiment in Feherguard Products Ltd. v. Rocky's of B.C. Leisure Ltd., [1994] F.C.J. No. 2012 (A.O.) at para. [10] that the "best way to administer the scheme of costs in litigation is to choose positive applications of its provisions as opposed to narrower and negative ones", the application of discretion should be part of a reasoned process to achieve a result on assessment which is equitable for both sides.
Filing Fees ($640.00) and Court Fees ($563.00) claimed by Elouise Lord
The Parties' Positions
[8] Elouise Lord argued that these costs were part of the Court's award. The Defendant asserted generally for all items of costs that it is difficult to effectively argue against information that is incomplete, if not inaccurate, and certainly unsubstantiated. The Defendant conceded that filing fees were paid but argued that, in the absence of receipts, only the $350.00 ($50.00 and $300.00 respectively for the statement of claim and pre-trial conference) evident from court records should be allowed. As well, given that only four of six Plaintiffs are entitled to costs, only $233.33 (4/6 of $350.00) are recoverable. The Defendant argued that, in the absence of evidence of court fees having been paid, nothing is recoverable. Alternatively, per the Defendant's position above, only 4/6 of $563.00 is recoverable.
Assessment
[9] I concluded in Milliken & Company et al. v. Interface Flooring Systems (Canada) Inc. [2003] F.C.J. No. 1586 (A.O.) that costs may be apportioned as a function of the circumstances of litigation. I allow $233.33 to Elouise Lord for filing fees. As for court fees, given the state of the materials for costs advanced by the Four Plaintiffs, the Defendant's concerns are understandable. However, that does not mean that the Four Plaintiffs should not benefit from my experience in assessments of costs particularly in the circumstances of materials not especially well fashioned, but in which I believe there well may have been real and necessary expenditures thereby making a result of nil dollars on assessment absurd. There were charges by the Registry subsequent to trial, further to Tariff A2, for court fees for a hearing lasting more than three days. Each party, including the single Defendant, owed $34.29. The court records confirm payment by the Four Plaintiffs and I therefore allow $137.16 to Elouise Lord (as she paid on behalf of all Plaintiffs). The court record does not disclose any other apparent court fees charged and I therefore disallow the balance of the $563.00. Some of that balance may have addressed Tariff A1(3) levies for copies of documents from the court file, but I feel that my disposition below for photocopies is sufficient for this matter.
Witness Fees ($600.00) and Witness Travel Costs ($1,500.00) claimed by Elouise Lord
Party Travel Costs: $263.50, $310.75, $190.00 and $1,550.00 claimed by Coralee, Dawn, Vera and Elouise Lord respectively
Long Distance Telephone Calls: $129.64, $115.76, $105.48 and $979.56 claimed by Coralee, Dawn, Vera and Elouise Lord respectively
Facsimiles: $24.96, $23.78, $25.48 and $118.25 claimed by Coralee, Dawn, Vera and Elouise Lord respectively
Photocopies: $15.34, $15.34, $10.67 and $27,562.50 claimed by Coralee, Dawn, Vera and Elouise Lord respectively
Service of Documents ($114.37) and transcripts ($838.25) claimed by Elouise Lord
The Four Plaintiffs' Position
[10] Elouise Lord argued further to Entreprises Blanchet Ltée v. Canada, [1989] 2 F.C. D-43 (T.O.) that a witness who is also a party is entitled to witness fees. The Four Plaintiffs asserted that travel costs were kept to a minimum where possible and argued further to Desloges v. Canada (Attorney General) [2001] F.C.J. No. 1627 (A.O.) that a self-represented litigant may claim travel costs. The travel costs of $1,550.00 claimed by Elouise Lord addressed several trips to Kamloops and Victoria to obtain signatures and documents from the other Plaintiffs and the travel costs claimed by Coralee, Dawn and Vera Lord addressed their attendance at trial. The Four Plaintiffs argued that several motions and court dates throughout the litigation necessitated extensive communications between the parties by long distance calls or by facsimiles, and the associated costs for these and other items were diligently tracked in accordance with the Rules and are all contemplated by the Court's award of costs. Elouise Lord indicated that the figure of 78,750 was her best estimate of photocopies.
The Defendant's Position
[11] The Defendant argued that there were no witnesses other than the Plaintiffs and therefore, as parties, they cannot claim witness fees. Alternatively, if allowable, they should be restricted to days on which each of the Four Plaintiffs testified and not every day of trial. Nothing is recoverable for David or Derik Lord. The absence of receipts precludes an analysis of the $600.00 claimed.
[12] The Defendant argued that the claim of $50.00 per day to transport Derik Lord in custody to court is reprehensible given that the Crown, and not Elouise Lord, assumed those costs. The Defendant reiterated its argument above that, as parties, the Plaintiffs cannot claim witness travel costs. Alternatively, as above, only costs associated with actual days of testimony may be claimed and no costs are recoverable for David or Derik Lord. In the absence of receipts, and given that they are family members, it is doubtful that each Plaintiff used her own car. The Defendant argued that Elouise Lord's travel claim to meet with the other Plaintiffs is unreasonable given the October 20, 1997 order requiring each one to represent themselves. As well, there were reasonable and much cheaper alternatives such as facsimiles, mail or couriers.
[13] The Defendant argued that nothing should be allowed for long-distance calls in the absence of records. Alternatively, any allowances should be reduced to reflect the likelihood, over an extended period, of family discussions irrelevant to this litigation. The Defendant took no position on facsimiles for the Four Plaintiffs and took no position on photocopies relative to Coralee, Dawn and Vera Lord, but argued further to Diversified Products Corp. v. Tye-Sil Corp. (1990), 13 C.P.R. (2d) 248 (F.C.T.D.) that the 78,750 copies claimed by Elouise Lord in these circumstances were likely not reasonable and essential, ie. the provision to the Court of 13 separate affidavits given oral testimony by each Plaintiff. A further element of unreasonableness is the rate of $0.35 per page given the standard of $0.25 per page in Moloney v. Canada [1989] 1 C.T.C. 213 (F.C.T.D.). The Defendant argued that nothing should be recoverable for service of documents because this would duplicate facsimile charges conceded above. As well, Elouise Lord usually served documents by facsimile. The Defendant objected to transcript charges in the absence of receipts and argued further that such costs are recoverable in an appeal bill of costs, but not here.
Assessment
[14] By definition, a self-represented litigant must be in court to argue her case, but that does not entitle her to fees under Tariff A3(1) and (3) for the time spent as a witness in her own cause: see Top Notch Construction Ltd. v. Top-Notch Oilfield Services Ltd., [2002] F.C.J. No. 304 (A.O.). I allow nothing for witness fees and witness travel costs. The party travel costs are different because it is essential that a self-represented litigant travel to a trial venue, remote from her home base, to be present every minute to present her case. The time spent testifying would constitute only a portion of that time. If these Plaintiffs had been represented by counsel, I would likely disallow these travel costs completely, but here they had to be present to argue their case. It appears from the Four Plaintiffs' materials that hotel and meal costs were not factors. Notwithstanding other evidence in the record, I consulted the Abstract of Hearing for addresses for these Four Plaintiffs. For Coralee Lord (Victoria) and Vera Lord (Kamloops), a return home each night during a four-day trial would have been impractical. The commute each day for Dawn and Elouise Lord (Chilliwack) was not inconsiderable. I think that the Defendant was justified in raising concerns about the difficulty in confirming reasonableness given the problems with the Four Plaintiffs' materials and approach. For example, my directions dated June 26, 2003, partly in response to the first May 21, 2003 affidavit sworn by Elouise Lord, asserted the need to produce receipts. I expected a newly dated affidavit. Instead, the August 11, 2003 materials sent by facsimile to the Registry included an affidavit by Elouise Lord sworn May 21, 2003, visually identical to the one referred to above, including the handwriting for the date and signatures, but now featuring an additional paragraph numbered 14 promising to file "a separate document titled RECEIPTS". While I am certain, given my reading of the record, that some of the costs of the Four Plaintiffs were incurred needlessly as a function of inexperience with practice and procedure, I note that, at the time decisions were made to incur such costs, they would have had no assurance that such costs would ultimately be recoverable. That is, there is no indication that Coralee, Dawn or Vera Lord deviated from the sense of austerity that should pervade costs. The noticeable spikes upward for the costs of Elouise Lord as compared to the other three are likely not a result of conscious decisions for lavish conduct of the litigation, but rather of a lack of the expertise of a trained lawyer to make sound decisions as to what was reasonably necessary at the time. I allow $140.00, $120.00, $190.00 and $180.00 respectively for the travel costs of Coralee, Dawn, Vera and Elouise Lord.
[15] Although I understand the rationale for the Defendant's rigid assertion to deny long distance costs in the face of questionable proof, I think that the reality of this litigation necessitated some costs in this area. I allow $50.00 to each of Coralee, Dawn and Vera Lord, and $150.00 to Elouise Lord.
[16] In the circumstances of this litigation, the claim by Elouise Lord of $27,562.50 for photocopies is untenable. A self-represented litigant should and must have every opportunity to fairly present her case. That does not entitle her to a windfall profit as a function of costs, particularly in circumstances in which I think that her decisions, as the person who seems to have borne the brunt of case preparation, may not have always resulted in reasonably necessary expenditures. As well, some of the photocopies would likely have related to David and Derik Lord, but I do not intend to attempt apportionment of documents to excise non-recoverable costs relative to those two Plaintiffs. Other examples of difficulties with this item are the claims for several copies of a motion record apparently dated October 5, 1998, which is not in the court record and for several copies of the motion record filed October 5, 2000, which resulted in the order dated October 18, 2000, for the production of Derik Lord each day in custody at trial, but which was silent as to costs thereby precluding any associated costs such as photocopies. Consistent with Re Eastwood (deceased) supra and my approach in Carlile supra and in Canadian Union of Public Employees, Local 4004, v. Air Canada, [1997] F.C.J. No. 464 (A.O.), I allow a reduced amount of $850.00 to Elouise Lord for photocopies. All or a portion of the $114.37 claimed for service of documents (couriers perhaps?) could be reasonably necessary given the varied locations of the parties. I allow a reduced amount of $55.00.
[17] The costs for discovery transcript may be claimed in a Federal Court bill of costs. The Four Plaintiffs' materials do not rule out the possibility that the transcript costs claimed here were associated with the abandoned appeal. The court record discloses a letter dated September 24, 1998, from Elouise Lord to counsel for the Defendant asking whether he will waive examinations for discovery. The Requisition for Pre-Trial Conference filed October 12, 1999, by the Plaintiffs asserted that all "examinations for discovery which the plaintiffs intend to conduct are complete." It is not apparent from the court record whether examinations for discovery in fact did occur. No costs are recoverable by these Four Plaintiffs relative to David or Derik Lord for examinations for discovery. The Defendant's outstanding bill of costs as against David Lord does not claim for counsel fees or transcripts relative to discovery. An excerpt of transcript from a court in another jurisdiction was exhibited to an affidavit in the motion record referred to above for the production of Derik Lord each day in custody at trial. The costs for acquisition of that transcript are not assessable here. I think that, given my view of the manner of conduct of this litigation on the part of the Plaintiffs, an examination for discovery would have resulted in problems apparent in the court record and requiring the intervention of the Court in response to a motion. Regardless of the assertion of the Four Plaintiffs that discoveries were completed, I am not confident that they indeed did occur and I therefore disallow the $838.25 claimed.
Notary Public Fees: $52.80, $52.80, $52.80 and $105.60 claimed by Coralee, Dawn, Vera and Elouise Lord respectively
Legal Costs: $1,700.00, $125.00 and $1,456.74 claimed by Coralee, Dawn and Elouise Lord respectively
Miscellaneous Costs: $155.76, $179.52, $145.99 and $572.56 claimed by Coralee, Dawn, Vera and Elouise Lord respectively
The Four Plaintiffs' Position
[18] The Four Plaintiffs asserted that the legal costs related to advice from lawyers regarding specific items, but that they could not, in the circumstances, afford legal representation on the record. The Four Plaintiffs argued further to Canada (Attorney General) v. Kahn, [1998] F.C.J. No. 1542 (F.C.T.D.) that a self-represented litigant may claim costs for legal advice and for his own time. The Four Plaintiffs asserted that the notary public costs related to the swearing of affidavits and that the judgment authorized the miscellaneous costs claimed.
The Defendant's Position
[19] The Defendant argued that nothing should be allowed for notary public costs and legal costs in the absence of receipts. As well, the Court specifically ordered that the Four Plaintiffs were not entitled to counsel fees. The Defendant argued that both the lack of receipts and of any means of identification of items means that the miscellaneous costs should not be allowed.
Assessment
[20] It is arguable that these Four Plaintiffs, but not David or Derik Lord, could claim costs further to an interlocutory order dated October 20, 1997, striking their Statement of Claim as against all Defendants except Her Majesty the Queen, characterizing said pleading as "embarrassing in that it is disjointed, ill-defined and confusing... impossible to plead to in any coherent manner... does not delineate the proceeding clearly enough for the Court to properly control the proceedings", providing for amendments to said pleading on terms and awarding costs in the cause. As noted above, there are other interlocutory events for which the Four Plaintiffs are not entitled to costs. In this assessment of costs, I have tried to balance the entitlement of the Four Plaintiffs to indemnification for real expenses which my experience tells me they must have incurred, but in circumstances in which I think their decisions may not always have been a function of reasonable necessity and therefore likely resulted in costs included in their bill of costs not properly recoverable from the Defendant, with the need to preclude the Defendant from having to pay costs not reasonably necessary or, relative to David or Derik Lord, for which no entitlement to costs exists. For notary public costs, I allow $20.00 to each of Coralee, Dawn and Vera Lord and $40.00 to Elouise Lord.
[21] The judgment here specifically precluded counsel fees. In any event, billings from counsel not on record, presented as a disbursement, would result in solicitor-client indemnification not authorized in these circumstances. As for Canada v. Kahn supra concerning reimbursement for a litigant's time, I have concluded that that falls within Rule 400(1) discretion beyond my jurisdiction: see Turner v. Canada, [2001] F.C.J. No. 250 (A.O.) affirmed at [2001] F.C.J. No. 1506 (F.C.T.D.). I allow nothing for legal costs. As for miscellaneous costs, I think that my allowances to this point have sufficiently reimbursed the Four Plaintiffs in circumstances of less than adequate materials, save perhaps for items such as binding. For miscellaneous costs, I allow $20.00 to each of Coralee, Dawn and Vera Lord respectively. I allow $100.00 to Elouise Lord.
[22] The bill of costs, presented at $2,342.00, $822.95, $530.42 and $36,600.83 respectively for Coralee, Dawn, Vera and Elouise Lord, is assessed and allowed at $270.30, $249.12, $316.15 and $1,863.74 respectively. In arriving at these results, I am mindful of the fact that some are a significant fraction of or exceed the damages awarded in this litigation. However, costs are in the discretion of the court and represent part of the control of the court over its process.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, BC
March 10, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1354-97
STYLE OF CAUSE: DAVID WILLIAM LORD et al.
- and -
HER MAJESTY THE QUEEN
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: March 10, 2004
SOLICITORS OF RECORD:
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada