Smith v. Canada (Attorney General)

Smith v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2009-04-24
Neutral citation
2009 FC 414
File numbers
T-2067-07
Decision Content
Date: 20090424
Docket: T-2067-07
Citation: 2009 FC 414
Ottawa, Ontario, April 24, 2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
RONALD ALLEN SMITH
Applicant
and
ATTORNEY GENERAL OF CANADA;
MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE;
MINISTER OF PUBLIC SAFETY
Respondents
SUPPLEMENTAL REASONS FOR JUDGMENT AND JUDGMENT
[1] In my earlier Reasons for Judgment in this proceeding dated March 4, 2009 I requested further submissions from the parties concerning costs. These are my supplemental Reasons on that outstanding issue.
[2] The Applicant is seeking solicitor-client costs on the basis of the novelty and complexity of the case. There are no assertions of improper conduct on the part of the Respondents or their counsel.
[3] Costs on a solicitor-client scale are rarely awarded and then generally only when the unsuccessful party is shown to have acted in bad faith or was guilty of some form of underlying misconduct. The principles which inform an increased award of costs were stated by Justice Carolyn Layden-Stevenson in AB Hassle v. Genpharm Inc., 2004 FC 892, [2004] F.C.J. No. 1087 at para. 15:
15 Success normally entitles a party to costs, not increased costs. Costs should be neither punitive nor extravagant. It is a fundamental principle that an award of costs represents a compromise between compensating a successful party and not unduly burdening an unsuccessful party: Apotex v. Wellcome Foundation Ltd. (1998), 159 F.T.R. 233 (F.C.T.D.), aff'd. (2001) 199 F.T.R. 320 (F.C.A.). The discretion to order increased costs is not to be exercised lightly and is the exception: Consorzio, supra.
[4] I agree with counsel for the Respondents that this is not a case where solicitor-client costs or an award falling outside of the Tariff would be justified. On the other hand, there is merit to the Applicant’s submission that the death penalty aspect to this case raised the stakes for his counsel. The amount of work that was put into this case by his counsel and the high quality of that work is clearly evident on the record before me. Notwithstanding the fact that the case was resolved on the basis of the relatively more prosaic issue of procedural fairness, the Applicant’s counsel were fully justified in pleading the Charter issues which, in the end, were unnecessary for me to resolve.
[5] The award of costs in this proceeding should reflect the complexity and importance of the issues raised and the thoroughness of the legal work carried out by the Applicant’s very experienced legal team. The costs of this proceeding will be taxed under Column V.
JUDGMENT
THIS COURT ADJUDGES that the Applicant’s costs in this proceeding will be taxed under Column V.
“ R. L. Barnes ”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2067-07
STYLE OF CAUSE: SMITH
v.
ATTORNEY GENERAL OF CANADA,
MINISTER OF FOREIGN AFFAIRS AND
INTERNATIONAL TRADE,
MINISTER OF PUBLIC SAFETY
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 29 and 30, 2008
REASONS FOR JUDGMENT
AND JUDGMENT BY: Mr. Justice Barnes
DATED: April 24, 2009
APPEARANCES:
Mr. Lorne Waldman
Ms. Marlys Edwardh
Ms. Adriel Weaver
Ms. Ildiko Erdei
Mr. Craig Forcese
FOR THE APPLICANT
Mr. Eric Groody
Mr. David de Vlieger
Ms. Katherine Reiffenstein
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario
Ruby & Edwardh
Toronto, Ontario
University of Ottawa
Ottawa, Ontario
FOR THE APPLICANT
Code Hunter LLP
Calgary, Alberta
FOR THE RESPONDENTS