'Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard)

'Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard)
Court (s) Database
Federal Court Decisions
Date
2020-09-08
Neutral citation
2020 FC 888
Decision Content
Date: 20200908
Docket: T-430-18
Citation: 2020 FC 888
BETWEEN:
‘NAMGIS FIRST NATION
Applicant
and
MINISTER OF FISHERIES, OCEANS AND THE CANADIAN COAST GUARD,
MARINE HARVEST CANADA INC. AND
CERMAQ CANADA LTD.
Respondents
REASONS FOR ASSESSMENT
GARNET MORGAN, Assessment Officer
I. Introduction
[1] This is an assessment of costs pursuant to a Judgment of the Federal Court dated February 4, 2019, wherein the application for judicial review was granted with costs. At paragraph 5 of the Judgment the Court states:
5. ‘Namgis shall have its costs assessed pursuant to Rule 400(5) subject to this Court’s direction that:
(a) All costs shall be assessed in accordance with Tariff B, Column III;
(b) The assessed costs shall be payable by the Minister to ‘Namgis.
(c) All costs pertaining to T-744-18 shall be excluded.
[2] This assessment of costs is also pursuant to an Order of the Federal Court dated March 23, 2018, wherein the Applicant’s motion for an interlocutory injunction was dismissed with costs in the cause. As the judicial review was decided in the Applicant’s favour, it entitles the Applicant to costs for this motion as well.
[3] On October 22, 2019, the Applicant filed a Bill of Costs.
[4] On November 18, 2019, the Assessment Officer issued the following direction:
Having reviewed ‘Namgis First Nation’s Bill of Costs, filed on October 22, 2019, it has been determined that this is an assessment which may be dealt with by way of written submissions.
Therefore, it is directed that:
a) the ‘Namgis First Nation may serve and file all materials (if it has not already done so) including the bill of costs, supporting affidavits and written submissions together with a copy of the direction by December 20, 2019;
b) the Minister of Fisheries, Oceans and the Canadian Coast Guard may serve and file any reply materials by February 7, 2020;
c) the ‘Namgis First Nation may serve and file any rebuttal materials by March 13, 2019.
[5] Throughout my Reasons for Assessment, ‘Namgis First Nation will be referred to as “the Applicant” and the Minister of Fisheries, Oceans and the Canadian Coast Guard will be referred to as “the Minister”.
[6] Subsequent to the direction dated November 18, 2019, the Applicant’s costs material was filed on December 3, 2019; the Minister’s reply material was filed on February 7, 2020; and the Applicant’s rebuttal material was filed on March 12, 2020.
[7] A review of the court record indicates that no further material was received by the court registry and no request was made by either party to the Assessment Officer to provide additional material after the filing of the Applicant’s rebuttal material on March 12, 2020.
II. Preliminary Issue
[8] Before assessing the costs of the Applicant, there is an issue regarding the Applicant’s claims for assessable services and disbursements related to the expert affidavits of Dr. Fred Kibenge, Dr. Martin Krkosek and Dr. Richard Routledge (collectively the ‘Namgis Expert Affidavits), which I will address as a preliminary issue. The issue pertains to an Assessment Officer’s authority under Part 11 of the Federal Courts Rules, SOR/98-106 (FCR) to allow costs related to expert services which have been deemed to be inadmissible by the Court.
[9] ‘Namgis Expert Affidavits were filed in relation to the Applicant’s motion for an interlocutory injunction and also in relation to the judicial review proceeding. The ‘Namgis Expert Affidavits filed in relation to the Applicant’s motion for an interlocutory injunction were:
- Affidavit of Dr. Richard Routledge, affirmed on February 27, 2018;
- Affidavit of Dr. Fred Kibenge, affirmed on March 6, 2018;
- Affidavit of Dr. Martin Krkosek, affirmed on March 7, 2018;
- Affidavit of Dr. Fred Kibenge, affirmed on March 19, 2018;
[10] The ‘Namgis Expert Affidavits filed in relation to the Applicant’s judicial review proceeding were:
- Affidavit of Dr. Richard Routledge, affirmed on May 14, 2018;
- Affidavit of Dr. Fred Kibenge, affirmed on May 14, 2018;
- Affidavit of Dr. Martin Krkosek, affirmed on May 14, 2018;
- Affidavit of Dr. Fred Kibenge, affirmed on July 24, 2018.
A. Relevant passages from the Court’s decisions dated February 4, 2019 and March 23, 2018
[11] At paragraph 237 of the Judgment and Reasons dated February 4, 2019, the Court states:
237. In my view, the Krkosek Affidavit does not provide helpful background information. It does not summarize the evidence that was before the decision-maker nor is it necessary for the Court to understand the issues relevant to the judicial review. It is not a non-argumentative orienting statement. And, although the scientific debate at the heart of these applications is no doubt complex, this affidavit is not reviewing in a neutral and uncontroversial way the evidence that was before the Delegate. Rather, the affidavit provides new information, speaks to the merits of the mater decided by the Delegate; engages in the interpretation of the evidence; and challenges the reasonableness and scientific validity of the PRV Policy and the reconsideration decision.
[12] At paragraph 240 of the Judgment and Reasons dated February 4, 2019, the Court states:
240. Indeed, in its written submissions responding to the motion to strike, ‘Namgis describes the Krkosek Affidavit as “an explanation of how a flawed decision-making process can affect an outcome, and should be addressed as such as part of arguing the application on the merits.” In my view, this and similar arguments tend to conflate the purposes of the exceptions to the general rule precluding admission of evidence that was not before the decision-maker with a challenge to the reasonableness of the decision on its merits based on extrinsic evidence. The evidence is not admissible for the latter purpose, and ‘Namgis is not challenging the decision-making process as such.
[13] At paragraphs 248 and 249 of the Judgment and Reasons dated February 4, 2019, the Court states:
248. I agree with the Respondents that Dr. Kibenge’s critique of DFO’s scientific and decision-making processes do not amount to helpful background information. Like the Krkosek Affidavit, it does not summarize or review in a neutral and uncontroversial way the evidence that was before the Delegate. Nor is it necessary for the Court to understand the issues relevant to the judicial review. It does not provide evidence to demonstrate the existence of a critical gap in the record that could not be demonstrated based on the record itself.
249. Nothing in the Kibenge Affidavit supports ‘Namgis’ allegation that the decision to adopt and maintain the PRV Policy was done with a view to improperly further the interests of the aquaculture industry. It does not establish an ulterior motive. And while Dr. Kibenge characterizes DFO’s underlying science and DFO’s assessment of other science as amounting to misrepresentations, minimizations and omissions, I am not persuaded that his evidence establishes bad faith on the part of the decision-maker, the Delegate, or on the part of DFO’s scientists in providing advice to the Delegate. Rather, these terms are used by Dr. Kibenge as part of a critique of the approach taken by DFO to the science. However, DFO’s weighing or assessment the science, or any failure to assess other science, goes to the merits of the decision, it does not establish bad faith.
[14] At paragraph 260 of the Judgment and Reasons dated February 4, 2019, the Court states:
260. Upon review of the Routledge Affidavit, I conclude that it is premised on the affiant’s own interpretation of the logic and rational of the PRV Policy. And, like the prior affidavits, Dr. Routledge states repeatedly that insufficient reasons were given to support DFO’s conclusions, and opines on the weight given to certain factors by DFO. In my view, the Routledge Affidavit not only speaks to the merits of the matter before the Delegate, it reweighs and reconsiders the evidence, addresses evidence Dr. Routledge believes should have been considered by DFO, and speaks to the affiant’s opinion of the sufficiency of the Delegate’s reasons. In effect, the Routledge Affidavit seeks to step into the shoes of the Delegate and re-make the decision as the affiant deems appropriate. The Routledge Affidavit addresses many of the same issues and concerns as did the prior two affidavits and, for the same reasons, it is not admissible under any of the exceptions.
[15] At paragraphs 265, 266 and 267 of the Judgment and Reasons dated February 4, 2019, the Court states:
265. The admission of the ‘Namgis Expert Affidavits would have the effect of transforming the judicial review, intended to be a summary process, into a trial de novo on the merits of the science, taking the Court out of its proper role and becoming a forum for fact finding on the merits. And while ‘Namgis puts the ‘Namgis Expert Affidavits forward on the basis of the exceptions to the rule precluding the admission of evidence that was not before the decision‑maker, in reality this is little more than a cloaked attack on the science underlying the decision under review and seeking to provide the Court with an assessment of the evidence that differs from that made by the Delegate and DFO (Canadian Tire Corp at paras 11–13; Blaney v British Columbia (Minister of Agriculture Food and Fisheries), 2005 BCSC 283 at para 34). And, in response to the ‘Namgis Expert Affidavits, the Minister filed the Garver and Hyatt Affidavits, Marine Harvest filed the expert affidavits of Dr. Siah, Dr. Kent and Dr. Farrell, and Cermaq filed the expert affidavit of Dr. Noakes. ‘Namgis then sought to file the Kibenge Supplemental Affidavit, prompting the Minister to seek to file the Garver Supplemental Affidavit, all of which speak to the specifics of the attacked underlying science. Moreover, there were cross-examinations on these affidavits, which again delved into and challenged the underlying science and/or DFO’s treatment of it.
266. And, while opinion evidence of a properly qualified expert may be admissible if it is relevant, necessary to assist the Court, and not subject to any exclusionary rule, the ‘Namgis Expert Affidavits in this matter do not meet those qualifications. Even if they might contain useful factual information, it is so intertwined with unnecessary opinion evidence that it cannot realistically be severed. Accordingly, based on all of these concerns, the ‘Namgis Expert Affidavits in whole have been struck (Alberta Wilderness Assn v Canada (Minister of Environment), 2009 FC 710 at para 34). In the result, the responding expert evidence is unnecessary and is also struck out. That is, the Garver and Hyatt Affidavits filed by the Minister, the Marine Harvest Expert Affidavits (Drs. Siah, Kent and Farrell), as well as the affidavit of Dr. Noakes filed by Cermaq, are all struck as inadmissible. Further, the motions of ‘Namgis seeking to file the Kiberge [sic] Supplemental Affidavit and of the Minister seeking to file the Garver Supplemental Affidavit, are denied.
267. In summary, the ‘Namgis Expert Affidavits do not fall within any of the exceptions to the rule precluding the admission of evidence that was not before the decision-maker and, therefore, they are not admissible. And, even if they were admissible solely for the purpose of establishing bad faith, having carefully reviewed the ‘Namgis Expert Affidavits and the other evidence, I do not agree with ‘Namgis’ view that the ‘Namgis Expert Affidavits establish that DFO has repeatedly acted inconsistently with its statutory purpose with such reckless disregard that the absence of good faith can be deduced and bad faith presumed. Nor that these Affidavits demonstrate that DFO acted improperly to promote the interests of the aquaculture industry.
[16] At paragraph 400 of the Judgment and Reasons dated February 4, 2019, the Court states:
400. I also agree with the Minister that, in essence, ‘Namgis made unfounded allegations of unethical behaviour on the part of counsel for the Minister to ground a claim of breach of procedural fairness, which claim I have found to lack merit. I have also found that the ‘Namgis Expert Affidavits, which it submits demonstrate the Minister’s bad faith, to be inadmissible and, even if they were admissible, that they do not establish bad faith. I agree with the Minister and Cermaq that those bad faith allegations added significant procedural steps and costs to the applications. However, while this approach by ‘Namgis may have been ill advised, it was open to it. That said, it is not apparent to me why ‘Namgis required three expert affidavits which are based on the same instructions and largely cover the same ground. Finally, I would note that, as I have observed above, the bifurcation of ‘Namgis’ case between T-430-18 and T-744-18 was unnecessary.
[17] Concerning the Applicant’s motion for an interlocutory injunction, the Court stated the following at paragraph 64 of the Reasons for Order and Order dated March 23, 2018:
64. In his reply affidavit of March 19, 2018, Dr. Kibenge challenged the Marine Harvest test results for PRV. While I allowed this evidence to be considered, I gave it limited weight in reaching my decision.
[18] At paragraph 93 of the Reasons for Order and Order dated March 23, 2018, the Court states:
93. Based on the evidence before the Court, I have no difficulty in finding that the Applicant has established a serious risk of irreparable harm on a number of fronts: the complete lack of consultation by the Minister in respect of this transfer of Atlantic salmon into the Asserted Territory, notwithstanding a previous acknowledgement of a strong claim to Aboriginal fishing rights in that territory; evidence of the salmon fishery being of fundamental importance to the Applicant’s culture and way of life; that fishery being at serious risk, given the depleted wild salmon populations in the Asserted Territory; and the recent science establishing the connection between PRV and HSMI and the resulting risk of disease and mortality. All of this is proof of a real and non-speculative likelihood of irreparable harm to the Applicant.
B. Applicant’s Costs Material
[19] The Applicant has submitted that the disbursements related to the ‘Namgis Expert Affidavits are reasonable and that the principles for assessing expert disbursements were met, as established in Alliedsignal Inc. v. Dupont Canada Inc, [1998] F.C.J. No. 625. At paragraphs 13, 14 and 15 of the Applicant’s Written Submissions On Costs, it is submitted:
13. Below, ‘Namgis sets out the principles for assessing expert disbursements, and addresses each of Strickland J.’s queries in turn. It submits that the reasonableness of its expert disbursements is established.
(iii) General principles for assessing expert disbursements
14. In Alliedsignal Inc., the Assessment Officer established guidelines to assist in determining whether expert disbursements are allowable:
(a) the hiring of an expert must, in the circumstances existing at the time, be prudent and reasonable representation of the client;
(b) the hiring of an expert must not constitute a “blank cheque” for an award; and
(c) what reliance was placed on the expert’s testimony by the trial judge?15
(iv) The hiring of ‘Namgis’ experts was “prudent and reasonable”
15. ‘Namgis states that the hiring of its experts meets the “prudent and reasonable” requirement under Alliedsignal Inc. primarily for three reasons:
(a) the three experts were engaged on distinct grounds;
(b) the motion for injunction and judicial review application engaged scientific issues which required expert evidence; and
(c) Dr. Kibenge’s particular expertise is uniquely suited to this case.
[20] The Applicant’s submissions have also raised the issue of litigating in hindsight and referred to the jurisprudence - Alix v. Canada, 2015 FC 1238, at paragraph 9; Rachalex Holdings Inc. v. 921410 Ontario Ltd., 2010 FC 585, at paragraph 19; and Truehope Nutritional Support Limited v. Canada, 2013 FC 1153, at paragraph 111, in support of this argument. At paragraph 16 of the Applicant’s Written Submissions On Costs, it is submitted:
16. Further, as Johanne Parent, Assess. Off. has held, expert costs are not to “be assessed in hindsight but considering the circumstances existing at the time [they] were made.”16 In other words, “[w]hether or not the [expert report] was necessary to the final outcome of [a] file should not be considered in hindsight.17
[21] With regards to the Court’s uncertainty as to the reasonableness of the disbursements related to the ‘Namgis Expert Affidavits, the Applicant has submitted that the expert services were requisitioned from three different experts because each expert has training in a different discipline. In addition, it was submitted that two of the experts worked pro bono. At paragraphs 24 and 25 of the Applicant’s Written Submissions On Costs, it is submitted:
24. Additionally, two of the three experts – Drs. Krkosek and Routledge – agreed to work pro bono, i.e. without charging any expert fees.27 Accordingly, the only expert costs at issue (other than disbursements associated with Dr. Krkosek’s travel to Vancouver, which amount to $3,298.23; Dr. Routledge lives in the Vancouver area and did not incur travel costs)28 are those of Dr. Kibenge, which total $59,717.96.29
25. Dr. Kibenge’s fees related to his preparation of four separate expert reports (two on ‘Namgis’ motion and two on its judicial review application).30
[22] At paragraphs 36 and 37 of the Applicant’s Written Submissions On Costs, it is submitted:
36. First, the question in this assessment is not whether ‘Namgis is entitled to its disbursements. As set out above, that question has already been decided in its favour in both the motion and the application. Rather, the question is that of their reasonableness and, in that regard, the passage from Rachalex Holdings noted above emphasizes that reasonableness is not to be assessed in hindsight (i.e. it does not, in and of itself, operate to prejudice ‘Namgis that Strickland J. did not ultimately admit the affidavits).
37. Second, notwithstanding Strickland J.’s decision not to admit the evidence, it was still of clear utility to the Court: in the case of the motion for injunction, the evidence was admitted over Canada’s objections,53 and Manson J. commented, inter alia, that ‘Namgis had “established a serious risk of irreparable harm on a number of fronts … [including] the recent science establishing the connection between PRV and HSMI and the resulting risk of disease and mortality.”54
C. The Minister’s Reply
[23] The Minister has submitted in reply that the Applicant’s reliance on “inadmissible extrinsic evidence” unnecessarily complicated the proceeding and added substantial time to it. The Minister has submitted that at paragraph 400 of the Court’s Judgment and Reasons dated February 4, 2019, the Applicant’s expert affidavits were found to be inadmissible. The Minister has submitted that the costs claimed by the Applicant for the expert affidavits are not reasonable and should be refused and in support of this argument has cited paragraphs 95 to 101 of Truehope Nutritional Support Limited v. Canada, 2013 FC 1153, wherein the Assessment Officer stated the following:
95. Concerning relevance and admissibility, in Carruthers v Canada, [1982] F.C.J. No. 235, the Court held:
In cases in which experts are called by both parties and they give conflicting opinions, the Court has to choose the opinion of one of the experts as preferable to the other, unless the Court chooses to reject both opinions and substitute its own based on the evidence, but the fact that one expert's report is rejected, or not accepted in full, would not justify non-payment of his fees for the preparation of same, unless the Court finds that the requisitioning of such a report was entirely unnecessary or the contents useless.... (emphasis added)
96. Referring to Carruthers, at paragraph 51 of Merck & Co v Canada (Minister of Health), 2007 FC 312, (Merck) the Assessment Officer held:
Since the Federal Court ruled that most of the evidence attached to the Affidavit of Frank Tassone was "unnecessary" and that "most of it was inadmissible," it is my opinion that the Apotex Respondent should not be entitled to claim these expert fees in their entirety. For these reasons and considering the proposition expressed in Grace M. Carlile, supra, that "a result of zero dollars would be absurd", I exercise my discretion and allow a reduced amount of $500.00 for the associated expert fees of Frank Tassone.
97. The Assessment Officer appears to allow a reduced amount due to the fact that the Court did not find the evidence entirely inadmissible. On the review of the Assessment Officer's decision, at paragraphs 31 and 32 of Merck & Co v Apotex Inc, 2007 FC 1035, (Merck Review) the Court held:
The assessment officer himself noted in paragraph [12] of his reasons that, at paragraphs [60] and [61] of his reasons, Justice Mosley found that it was improper for Apotex to use the Tassone affidavit to submit evidence, that Apotex made no real effort to explain how most of the material annexed to that affidavit would be relevant and admissible and that it was unnecessary and excessive to "dump" the U.S. Trial evidence into the record by the use of the Tassone affidavit. He ruled that most of the material under cover of the Tassone affidavit was inadmissible and he strongly discouraged "any repetition of this practice".
In light of Justice Mosley's comments I consider the assessment officer's reliance on Carlile v Canada (Minister of National Revenue) in this context, a decision of a fellow assessment officer, to be ill-founded and the resulting amount allowed for the disbursement to Mr. Tassone to be so unreasonable that an error in principle must have been the cause. In the result, I would reduce the assessed costs by $500.00 to nil on this account. (emphasis added)
98. In Merck & Co., the Court noted that Justice Mosley found the affidavit to be unnecessary and excessive. Therefore, even though not all of the material under cover of the Tassone Affidavit was inadmissible, the Court reduced the assessed amount to nil. I find this to be consistent with the Court’s finding of necessity in Carruthers (supra).
99. In the matter before me, the Court found the evidence of Dr. Silverstone to be irrelevant and inadmissible and, following the findings in Carruthers and Merck & Co. (supra), the disbursements claimed for the services of Dr. Silverstone are not allowed.
100. At paragraph 132 of the Applicants’ Memorandum, counsel submits:
If it is accepted that there should be no costs allowed for Dr. Silverstone, then in addition to his expert fees, the following costs should be also disallowed:
a. Item 8 concerning Dr. Silverstone;
b. Item 9 concerning Dr. Silverstone;
c. $1322.50 for transcripts (Potts Aff. Ex BB p. 325);
d. The part of the copying and tabs for the affidavits which is attributable to Dr. Silverstone’ affidavit (Potts Aff. pp. 92-3, Ex. Z 265-8, 270);
e. The part of the Respondents’ Record and courier charges attributable to Dr. Silverstone’s affidavit.
The Respondents submitted no rebuttal concerning these points.
101. Having found that the disbursement for Dr. Silverstone’s expert fees could not be allowed, I also find that the fees and disbursements associated with the cross-examination of Dr. Silverstone, the disbursements related to the duplication service and filing of his affidavit should not be allowed. This being the circumstance, the amounts claimed under Item 8 and Item 9 for the cross-examination of Dr. Silverstone on August 5-7, 2009 and the disbursement of $1,322.50, for the transcript of the cross-examination of Dr. Silverstone are not allowed. Further, the amounts of $140.59 and $86.46 respectively for the duplication and courier changes associated with the Affidavits of Dr. Silverstone are not allowed.
[24] In addition, the Minister made submissions regarding the Applicant’s unfounded allegations of bad faith normally warranting a reduction of costs or an elevated award of costs to the opposing party. In support of this argument the Minister provided citations from Air Canada v. Toronto Port Authority, 2010 FC 1335, at paragraph 17; Jane Hamilton v. Open Window Bakery Limited, 2004 SCC 9, at paragraph 26; and Magnotta Winery Corp. v. Vintners Quality Alliance, 2001 FCT 1421, from paragraphs 69 to 71. In addition, at paragraphs 29 and 30 of the Minister’s Written Submissions, it is submitted:
29. In addition, this Court has deviated from the normal course of awarding costs where a party had made unfounded allegations of bad faith.14 The consequences of allegations of this nature include a reduction in costs. For example, in Ridell v Canada (Chief Electoral Officer)15, this Court noted:
Now, the respondent Gauthier’s counsel advanced certain preliminary objections one of which was effective and many of which were simply objectionable. Among the latter are those which imputed malice, bad faith, dishonesty, and unethical behaviour on the part of the applicant, all without a scintilla of evidence. Although Mr. Gauthier was importuned out of the blue with little notice, he cannot expect to be awarded a full measure of costs when his counsel takes such an approach.18 [Emphasis Added]
30. In T-430-18, the unfounded allegations of bad faith and the expense required to have expert witnesses give evidence are relevant for the purposes of determining the appropriate award of costs.
D. Applicant’s Rebuttal
[25] The Applicant has submitted in rebuttal that the Minister has attempted to relitigate the issue of the Applicant’s entitlement to costs; has not referred to proper legal principles; and has selectively cited passages from the Court’s Judgment and Reasons dated February 4, 2019. At paragraphs 11, 12 and 13 of the Applicant’s Reply Submissions On Costs, it is submitted:
11. In this case, the question of ‘Namgis’ entitlement to costs has already been expressly decided in ‘Namgis’ favour by both Manson J.6 and Strickland J.7 The Minister nonetheless attempts to relitigate the issue of entitlement by selectively citing passages from Strickland J.’s decision in which she was critical of aspects of ‘Namgis’ overall litigation strategy in determining whether to order costs in favor of ‘Namgis.
12. However, Strickland J. ultimately concluded ‘Namgis’ strategy was “open to it”, and awarded it costs at Tariff B, Column 3 as successful applicant, to be determined via this assessment process.8 The Minister cannot reopen the issue of entitlement to costs here, and an assessment officer is without jurisdiction to do so: Pelletier at para. 7.
13. Accordingly, ‘Namgis maintains the position set out in its submissions in chief at paras. 10-39. The Minister indeed makes no attempt to question the reasonableness of the expert disbursements as at the time they were incurred (i.e. whether experts were necessary in the case, or whether they covered distinct grounds, the concern of Strickland J. that ‘Namgis has now addressed in its submissions in chief at paras. 19-25). Accordingly, the only relevant evidence and argument on this central issue are those provided by ‘Namgis.
[26] In reply to the Minister’s submissions regarding the Applicant’s unfounded allegations of bad faith, at paragraphs 8, 9 and 10 of the Applicant’s Reply Submissions On Costs, it is submitted:
8. Further, at para. 29 of his submissions, the Minister relies on the Ridell case to suggest that ‘Namgis’ entitlement to costs may be modified during the assessment process.
9. In reply, this position again urges the assessment officer to act beyond the jurisdiction associated with assessments under Rule 405. Ridell stands for the proposition that the Court, in hearing the merits of a matter, has the discretion to reduce costs awarded to a party depending on conduct and positions taken during the litigation. Indeed, the paragraph in Ridell following the one the Minister cites in his submissions makes clear that, during a motion to strike, the Court in that case decided that a party was entitled to “only two-thirds of his taxed party-and-party costs (in view of counsel’s extravagant and unproved allegations)”.3
10. In contrast, again, during an assessment the only question is the reasonableness of costs incurred, not the party’s entitlement to costs.4 In Pelletier, the Federal Court of Appeal confirmed the jurisdiction to assess under Rule 405 as follows: “[w]ithout costs, there can, of course, be no assessment … Under section 405, an assessment officer ‘assesses’ costs, which assumes that costs have been awarded.”5
[27] Further to the Applicant’s reference to paragraph 7 of Pelletier v. Canada, 2006 FCA 41, in the paragraph 10 of the Reply Submissions On Costs, the Court states:
7. Since the very purpose of a motion under section 403 is to request that directions be given to an assessment officer, it goes without saying that the party bringing the motion must be entitled to costs. Without costs, there can, of course, be no assessment. Section 403 can only be interpreted in light of an assessment officer's duties. Under section 405, an assessment officer "assesses" costs, which assumes that costs have been awarded. Section 406 provides that an officer does this at the request of "a party who is entitled to costs", which again presupposes that an order for costs was made in favour of that party. Under section 407, the officer assesses the costs in accordance with column III of the table to Tariff B "unless the Court orders otherwise." Section 409 provides that "[i]n assessing costs, an assessment officer may consider the factors referred to in subsection 400(3)." In short, the duty of an assessment officer is to assess costs, not award them. An officer cannot go beyond, or contradict, the order that the judge has made. If the judge gives a direction to the officer under section 403, the officer must comply with it.
E. Analysis
[28] As noted earlier in these reasons, at paragraph 14 of the Applicant’s Written Submissions On Costs, reference was made to Alliedsignal Inc. v. Dupont Canada Inc, [1998] F.C.J. No. 625, wherein the Assessment Officer established a guideline of three questions to assist in determining whether expert disbursements are allowable. I believe that Applicant has sufficiently answered questions (a) and (b) but it is the Applicant’s answer to question (c) which has raised some concerns. Question (c) states:
(c) what reliance was placed on the expert’s testimony by the trial judge?
[29] The Applicant’s response to question (c) states:
(c) Dr. Kibenge’s particular expertise is uniquely suited to this case.
[30] In addition, at paragraph 37 of the Applicant’s Written Submissions On Costs, it is submitted:
37. Second, notwithstanding Strickland J.’s decision not to admit the evidence, it was still of clear utility to the Court: in the case of the motion for injunction, the evidence was admitted over Canada’s objections,53 and Manson J. commented, inter alia, that ‘Namgis had ”established a serious risk of irreparable harm on a number of fronts … [including] the recent science establishing the connection between PRV and HSMI and the resulting risk of disease and mortality.”54
[31] The Applicant’s response to question (c) does not address “what reliance was placed on the expert’s testimony” by the Court at the judicial review hearing. The judicial review hearing, which as the final hearing for this file, would be the procedural equivalent to a trial, which is stated in question (c) of Alliedsignal. At paragraph 266 of the Judgment and Reasons dated February 4, 2019, the Court states the following regarding the ‘Namgis Expert Affidavits:
266. And, while opinion evidence of a properly qualified expert may be admissible if it is relevant, necessary to assist the Court, and not subject to any exclusionary rule, the ‘Namgis Expert Affidavits in this matter do not meet those qualifications. Even if they might contain useful factual information, it is so intertwined with unnecessary opinion evidence that it cannot realistically be severed. Accordingly, based on all of these concerns, the ‘Namgis Expert Affidavits in whole have been struck (Alberta Wilderness Assn v Canada (Minister of Environment), 2009 FC 710 at para 34). […]
[32] Based on the Court’s finding above, I have determined that question (c) has not been sufficiently answered by the Applicant in the context of the Court’s reliance on the experts’ testimony for the judicial review hearing and therefore the guideline established in Alliedsignal to assist in determining whether expert disbursements are allowable has not been fully met. It is noted though, that the Court did utilize and refer to the ‘Namgis Expert Affidavits in the Reasons for Order and Order dated March 23, 2018, related to the Applicant’s motion for an interlocutory injunction.
[33] The Applicant also raised the issue of litigating in hindsight and referred to the jurisprudence of Rachalex and Truehope. It is important to note that both of these cases dealt with evidence which was deemed to be partially admissible. This fact distinguishes Rachalex and Truehope from this particular file as all of the ‘Namgis Expert Affidavits were deemed to be totally inadmissible by the Court for the judicial review proceeding.
[34] In addition to the Truehope citations provided by both of the parties, paragraph 94 in this decision speaks to the issue of hindsight:
94. Concerning the Respondents' "hindsight argument", I find that the matter before me may be distinguished from Abbott Laboratories Limited v Canada (Minister of Health), 2009 FC 399. In Abbott the Assessment Officer found that, as a result of the motion to dismiss, "the parties had to be fully prepared to proceed on both the motion to dismiss and the application on its merits". In Abbott there is no indication that the Court found the expert evidence inadmissible. On the other hand, I am faced with a finding by the Court that the evidence of Dr. Silverstone is irrelevant and inadmissible. Given this finding, it is necessary to determine the effect of the inadmissibility finding and not simply allow the disbursements based on the premise that the parties had to be fully prepared to proceed.
[35] Further to the aforementioned jurisprudence, at paragraph 266 of the Judgment and Reasons, dated February 4, 2019, the Court refers to paragraph 34 of Alberta Wilderness Assn v. Canada, 2009 FC 710, wherein the Court states the following:
34. I do not find that Dr. Boyce's expert opinion on the issues before the Court, including the issue of "critical habitat," is necessary in the sense that without it, the Court could not appreciate the technical nature of the issues before it, which is how necessity is defined in Mohan. Further, the Supreme Court in Mohan directs that the necessity requirement is to be interpreted strictly where an expert provides an opinion on the "ultimate issue." The Boyce affidavit notably includes explicit opinion evidence on the ultimate issue at paragraphs 10, 18, 24 and 27. The statements in these paragraphs go well beyond a description of the evidence before the decision-maker, or helpful background information; their inadmissibility in this proceeding is obvious. The remainder of Dr. Boyce's affidavit contains factual information which arguably constitutes helpful background information on graduate work supervised by Dr. Boyce, which was then relied upon by the respondent in preparing the Greater Sage-Grouse Recovery Strategy. However, in my view, this factual information is so intertwined with unnecessary opinion evidence that it cannot realistically be severed and its admission would prejudice the respondent. As was the case in Canadian Tire Corporation v. Canadian Bicycle Manufacturers Association, 2006 FCA 56, the entirety of the contentious affidavit should be struck. Accordingly, the respondent's motion with respect to the Boyce affidavit is granted and it is struck in its entirety.
[36] My review of Rachalex, Truehope and Alberta Wilderness Assn, in conjunction with the Court’s Judgment and Reasons dated February 4, 2019, indicate that while a party must prepare their litigation without the laden of hindsight, there is a risk regarding a party’s potential claim for costs. The jurisprudence appears to indicate that a party may be entitled to indemnification for expert services which were deemed to be partially admissible by the Court and conversely, it appears that a party is not entitled to indemnification for expert services which were deemed to be totally inadmissible by the Court.
[37] In Pelletier, which was cited by the Applicant, the Court states that an Assessment Officer’s duty is to “assess costs, not award them.” It is important to note that the Pelletier decision was related to a case wherein a party had filed a motion pursuant to Rule 403 of the FCR for the Court to provide directions on costs to an Assessment Officer. My review of the court record indicates that no such motion was submitted by either party for this particular file. This being noted, even without a direction from the Court pursuant to Rule 403, an Assessment Officer still cannot go beyond, or contradict an order that the Court has made. In Carruthers v. Canada, [1982] F.C.J. No. 235, which is referred to in Truehope, the Court states:
In the judgment under appeal, no special direction was sought or made respecting costs, which were not spoken to. Had this been done, I would no doubt at the time have made a special direction with respect to the costs of Mr. Bowman of Price Waterhouse. The fact that in the reasons for judgment I indicated a preference for the approach to evaluation of the shares by Mr. Dalgleish, defendant's expert, and in fact based my decision on an earlier report of Mr. Clayton made for the defendant, should notice considered as detracting from the usefulness of Mr. Bowman's report, nor is it any reflection on his competence. In cases in which experts are called by both parties and they give conflicting opinions, the Court has to choose the opinion of one of the experts as preferable to the other, unless the Court chooses to reject both opinions and substitute its own based on the evidence, but the fact that one expert's report is rejected, or not accepted in full, would not justify non-payment of his fees for the preparation of same, unless the Court finds that the requisitioning of such a report was entirely unnecessary or the contents useless. That was not the case here, where an intricate and difficult question of evaluation of shares was involved, in which the assistance of accounting experts was valuable and necessary. […]
[38] There is no dispute that the Applicant has been awarded costs by the Court and is therefore entitled to claim costs for this particular file, the question to be answered is to what extent, if any, do the awards of costs on this file extend to the ‘Namgis Expert Affidavits. As an Assessment Officer my role is to determine the reasonableness of the claims made within a Bill of Costs and if these claims are allowable based on the particulars of a given file, including the Court decision(s); the parameters of Part 11 and Tariffs A and B of the FCR; and any jurisprudence that may have been established surrounding assessments of costs and in particular, assessments of costs determined by an Assessment Officer. Although there was no obligation on the parties to file a motion pursuant to Rule 403 of the FCR for the Court to provide directions on costs to an Assessment Officer, it may have been helpful in assessing the costs for this particular file.
F. Additional Jurisprudence
[39] In Mapeze Inc. v