Gladue v. Alberta (Attorney General), 2012 ABQB 319

Court of Queen ’ s Bench of Alberta Citation: Gladue v. Alberta (Attorney General), 2012 ABQB 319 Date: 20120515 Docket: 1003 10248 Registry: Edmonton Between: Brian Kurtis Gladue Applicant - and - Her Majesty the Queen in Right of Alberta as represented by the Attorney General of Alberta, Michael J. Boyd, Chief of Police of Edmonton Police Service, Brenda St. Germain, and the Attorney General of Canada Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Gladue claims costs against the Edmonton Police Service. He contends that he should be awarded costs for the issuance of two notices of constitutional question, for which there is no provision in the costs tariff. He also asks for costs of all of the briefs that he prepared, including one which was not required by court practice or by the court. He asks for costs of an adjournment application that he lost, and for an adjournment application to which he consented, but which he had caused. Finally, he asks for the inflation factor previously awarded by the court to be added to his photocopying costs.

[ 2 ] The Edmonton Police Service responds to the claim for a second set of commencement documents that item 1(1) of the tariff envisages a claim for one set of commencement documents. Moreover, the EPS notes that, whatever procedural issues arose relating to the notices of constitutional issue, the EPS was not a party to the constitutional issues and the court has already determined that Mr. Gladue is not entitled to either a Sanderson or a Bullock order. Therefore, the EPS argues that Mr. Gladue should not be entitled to costs for a second set of commencement documents.

The EPS responds to the briefs argument that where briefs are allowed by the court, as opposed to being required by the Rules or requested by the court, the litigant who chooses to file a brief should not necessarily be entitled to a tariff item for it; here, the costs brief was volunteered and should not become a separate costs item from the costs application. The EPS responds to the claim for costs for adjournments that Mr.

Gladue is not entitled to costs for an adjournment application which he opposed and lost, nor for an application for an adjournment requested by EPS which he did not oppose, but which he caused by late disclosure to the jurisprudence on which he intended to rely. Finally, the EPS contends that the inflation factor awarded by the court at the original costs hearing does not automatically apply to photocopying costs since the award of such disbursements as costs is not intended to include any component for labour. [ 3 ] Mr. Gladue is not entitled to a second fee for commencement of proceedings.

Apart from the general principle that is implicit in the notion of one commencement fee but which could, admittedly, be varied if circumstances require, here, two other factors militate against granting of an additional such fee. The first is that, as Mr. Gladue candidly acknowledges, he had filed a constitutional notice in the criminal proceedings that were stayed; therefore, there is no reason why he could not have filed all of the required constitutional materials at the commencement of these proceedings.

Second, the constitutional notices did not involve the EPS, those proceedings were not dealt with because they were unnecessary, and the court has, in the earlier costs decision, denied a Sanderson or Bullock order. [ 4 ] Mr. Gladue is not entitled to a fee for a brief allowed by the Court, but not required by the Rules nor requested by the court. [ 5 ] The court probably does not have jurisdiction to grant costs with respect to an application which Mr. Gladue unsuccessfully opposed before another judge: R. 10.29(1) suggests that Mr.

Gladue is already liable for costs to Canada for having unsuccessfully opposed its motion for an adjournment of the hearing. In any event, Mr. Gladue is not entitled, in his costs claim against EPS, to claim for a contested adjournment application brought by Canada, which only Mr. Gladue opposed and which Mr. Gladue lost. On the facts here, if the chambers judge had been asked when granting the adjournment over Mr. Gladue ’ s objections to deal with the issue of costs, she doubtless would have granted the other parties costs since not only were Mr. Gladue ’ s objections over-ruled, but Mr.

Gladue had opposed a cheaper method of hearing the application, i.e. by telephone conference. [ 6 ] Mr. Gladue is not entitled to the costs of an adjournment sought by a party opposite who was caught by surprise when presented on the scheduled hearing date with a volunteered brief by Mr. Gladue. [ 7 ] Mr. Gladue is not entitled to increase his claim for photocopying by an inflation factor of 1.2: our Court of Appeal has observed on several occasions that an award for photocopying is intended to compensate for actual expense, not to provide a profit centre.

In the absence of evidence, as is the situation here, the court will only award the amount that is typically awarded by assessment officers for that service, i.e. 15 cents a page. [ 8 ] In the result, Mr. Gladue ’ s claim for costs is varied by deducting from the draft bill of costs a total of $2,580.00 plus 3 cents per page for photocopying. [ 9 ] Because there has been mixed success on the second costs application, each party will bear their costs of that application.

Cases and authority cited [ 10 ] By the court: Gladue v Alberta (Attorney General) 2011 ABQB 535 ; Forsberg v Naidoo 2011 ABQB 705 , [2011] A.J. 1253 at paras. 26-29 . 1. Background

[ 11 ] An outline of the background to the proceedings, including the previous costs hearing, can be found at the decision cited above. [ 12 ] Mr. Gladue has prepared a Bill of Costs, under Column 1 of

Schedule C, claiming total costs of $8,130.31. In that Bill of Costs, under tariff item 1(1), he asks for the tariff fee of $1,000.00 for the preparation of commencement documents, plus the small inflation factor (1.2 amounting to $200.00) awarded in the earlier cost decision to reflect the age of the tariff. [ 13 ] Under the same tariff item, he asks for an additional $1,200.00 for the notice of constitutional question which he issued. [ 14 ] Under tariff item 8(1), he asks a total of $1,200.00 for the special chambers brief he filed on November 17, 2010 for a hearing scheduled in December, 2010.

Under the same tariff item, he requests an additional total of $1,200.00 for a second special chambers brief filed on January 7, 2011, for the application to be heard on February 3, 2011. [ 15 ] He also request costs of $600.00 for an additional ½ day of hearing in relation to the February 3, 2011 hearing which went longer than ½ day. [ 16 ] Under tariff item 7(1), he requests costs of $600.00 for a contested application for an adjournment against Canada, which application he lost before another judge on November 30, 2009.

So far as I am aware, no determination was made by the judge who heard the application to the effect that another judge could make the costs determination for the adjournment application. [ 17 ] He also requests an additional $600.00 for the filing of a supplemental argument following the February 3, 2011 application. [ 18 ] Under tariff item 6(1), he also requests a total of $180.00 for an uncontested application relating to costs on June 9, 2011. [ 19 ] Under tariff item 8(1), he requests costs totalling $1,200.00 for the costs assessment on June 20, 2011. [ 20 ] He requests re-imbursement of the $200.00 originating notice fee. [ 21 ] In relation to other charges, he notably requests photocopy charges at 18 cents, i.e. 15 cents a page plus the 1.2 inflation factor, totalling $2,065.32, along with relatively small amounts for local and long distance faxes, long distance telephone calls, registered mail, courier charge and runner fees.

The “ other charges ” total $2,350.31. [ 22 ] In total, Mr. Gladue ’ s costs claim for the special chambers application is $8,130.31. 2. Notices of constitutional question [ 23 ] At the close of proceedings such as this one, where there were several respondents to Mr. Gladue ’ s claim, each having a different position and role in the litigation, a Sanderson or Bullock order is the mechanism whereby fairness can be achieved on the issue of costs. Here, I have already disposed of the potential for imposing on EPS the costs that Mr. Gladue owes to another party.

The focus of this hearing is to determine what costs the EPS owes to Mr. Gladue for its failure to acknowledge that the long gun amnesty meant that no one, including no aboriginal and no Indian benefitting from treaty rights, had to register such a firearm and that, therefore, it was wrong of the EPS to withhold Mr. Gladue ’ s long guns from him merely because they were not registered. [ 24 ] EPS opposes Mr. Gladue ’ s request for a second tariff claim for commencement documents, i.e. the notice of constitutional

question; it states that item 1(1) of the tariff provides, as it were by definition, for preparation of one set, not two sets, of commencement documents. [ 25 ] I agree that, in the circumstances here, at least, Mr.

Gladue is not entitled to preparation of two sets of commencement documents. [ 26 ] I have come to that conclusion for the following reasons: - while I accept the EPS contention that, grammatically, “ one set of commencement documents ” encompasses all the legal fees connected with commencing the proceedings, I would not like to foreclose the possibility that, in some circumstances, a claim for preparation of two sets of commencement documents might be allowed; - in this case, however, as Mr.

Gladue himself candidly acknowledges, he had filed a notice of constitutional question in relation to his criminal proceedings. Therefore, by the time he initiated the civil proceedings, he was well aware of his intended arguments and he could have, and should have, prepared commencement proceedings that encompassed all his arguments; moreover, - in this case, EPS was not involved in the constitutional questions and, in the result, Mr. Gladue was not successful on the constitutional questions because the court did not have to deal with them, having concluded that the long gun amnesty answered Mr.

Gladue ’ s problem. [ 27 ] In the result, the fees portion of Mr. Gladue ’ s bill of costs is reduced by $1,200.00 as a result of the elimination of one item 1(1) tariff item. 3. Briefs [ 28 ] The Edmonton Police Service concedes, of course, that where briefs are required, as for example, to comply with the court ’ s administrative requirements relating to special chambers hearings, it is appropriate to include the preparation of such briefs in a Bill of Costs. [ 29 ] Form 7 of

Schedule A of the Rules of Court refers back to Rule 3.8 and states what information must be provided on an originating application. That form includes a reference to “ Applicable Acts and regulations ” , but does not, interestingly, specifically mention either case law or the rules of court.

The current format for what used to be called an originating notice is an improvement on Form G of the previous rules which did not even require any reference to applicable legislation much less to the rules even though, in former rule 384(2), even a simple notice of motion should have contained a reference to any Rule invoked. It might be advisable for Form 7 to be revised to require a reference to any Rule which applies and to be further revised to require the citation of any case law which applies.

If litigants provided timely disclosure to one another of the legal basis for their claim, some applications could obviously be resolved without the expense and delay of coming to court. [ 30 ] Here, Mr. Gladue was required to prepare a brief for the special chambers application and the need for a special chambers application was confirmed by the amount of time that it took to hear this matter. The fact that Mr. Gladue filed a total of 3 briefs is exceptional and may well be at the upper limit of a legitimate costs claim for briefs. However, in light of the difficulties which Mr.

Gladue experienced in getting the matter on for hearing in an expeditious way, it is acceptable in the circumstances here that new briefs were prepared as new positions unrolled. [ 31 ] However, Mr. Gladue is not entitled to a costs award for the additional brief which he prepared on the topic of costs. Although a court is unlikely to object to being presented with a brief to assist in following a litigant ’ s argument, litigants who choose to present their argument in that way are not necessarily entitled to a costs award. Here, Mr.

Gladue could have, in advance of the costs hearing, informed the EPS and the other litigants of the position he was going to take on the issue of costs. A brief presented at the hearing itself is likely to result in a request for adjournment; indeed, oral argument referring to legal authorities which have not been identified prior to the hearing to the parties opposite is also likely to result in a request for adjournment. The practical solution is for parties to let those opposite know the authorities on which they are relying in advance of a hearing; that does not require a brief.

[ 32 ] In the result, $600.00 is deducted from Mr. Gladue ’ s fees claim in relation to item 8(1) for June 20, 2011. 4. Adjournments [ 33 ] In his Bill of Costs, Mr. Gladue asks for cost of two adjournments; he is entitled to neither.

a) Failed objection to Canada ’ s request for an adjournment [ 34 ] Mr. Gladue asks for cost of an adjournment application which he lost. The application was made by Canada for an extension of time to consider Mr. Gladue ’ s constitutional arguments. Mr. Gladue was the only party who opposed the adjournment; Mr. Gladue was also the only party who opposed hearing the application for adjournment by way of telephone conference call. [ 35 ] I doubt that I have any jurisdiction to make a costs order with respect to the application for an adjournment which Mr.

Gladue unsuccessfully opposed: R. 10.29(1) suggests that Mr. Gladue, as the unsuccessful party to the application for an adjournment, has already become liable to pay costs to Canada. [ 36 ] If, however, I had any such authority, I would decline to exercise it in Mr. Gladue ’ s favour. On the facts here, if the chambers judge had been asked to deal with costs when granting the adjournment over Mr. Gladue ’ s objections, she doubtless would have granted the other parties costs since Mr. Gladue ’ s objections were not upheld and Mr.

Gladue had opposed a cheaper method of hearing the application, i.e. by telephone conference. Indeed, the usual rule is that the winner of a motion gets costs and the loser pays costs; Canada was successful in obtaining an adjournment and Mr. Gladue was unsuccessful in opposing an adjournment. Therefore, according to the usual principles of awarding costs, Canada should have had costs from Mr. Gladue; here, Canada states that it is not choosing to enforce costs against Mr.

Gladue. [ 37 ] It is true, of course, that in some, exceptional, situations a litigant asks for an adjournment, and gets the adjournment, but is nevertheless required to pay costs. Such a situation might arise where a medical problem prevents a litigant from complying with a scheduled trial commencement date and the court determines that the parties opposite will have thrown away preparation costs for which they must be compensated. There is nothing exceptional here. Mr. Gladue must pay the costs. [ 38 ] In the result, Mr.

Gladue ’ s fees ’ claim is reduced by $600.00 for the contested application on November 30, 2009.

b) Adjournment at request of EPS to consider Mr. Gladue ’ s volunteered brief [ 39 ] As indicated above, Mr. Gladue presented the parties opposite with his legal authorities, in the form of a brief, at the hearing scheduled for costs arguments. The fact that this resulted in a request for an adjournment by those parties, to which Mr. Gladue did not, of course, object, does not mean that Mr. Gladue is entitled to costs for the adjournment. On the contrary, he caused the adjournment and should therefore perhaps pay the other parties ’ costs for the adjournment. In the absence of any such request, Mr.

Gladue is relieved of the obligation of paying for costs; however, this does not entitle him to costs. 5. Photocopying costs [ 40 ] As the parties have pointed out, the cost of photocopying remains a surprisingly thorny aspect of costs. Perhaps that is not surprising as in the situation here where photocopying costs alone are claimed at over $2,000.00.

[ 41 ] Alberta case law on photocopying costs was recently usefully reviewed by Thomas J. in Forsberg . In relation to the Schmolzer decision referred to there, the parties here state that the Edmonton assessment officer (formerly called the taxing officer) allows photocopying at 15 cents a page. The Love decision does not provide reasons for allowing photocopying at 25 cents a page; it may be that in that case there was evidence of that being the actual amount that had been paid by the law firm to obtain the photocopies.

The Huet decision from our Court of Appeal referred to in Forsberg allowed photocopying at 15 cents a page when no evidence was presented about the actual costs of that service. 6. Costs of the second costs hearing [ 42 ] Success on the second costs hearing was mixed: Mr. Gladue was able to maintain some of his claims for briefs and the claims on which the EPS were successful only reduced the overall costs claim by a little over 25%. Therefore, each party should bear their own costs of the second costs hearing. Heard on the 8 th day of December, 2011.

Dated at the City of Edmonton, Alberta this 11 th day of May, 2012. J.B. Veit J.C.Q.B.A. Appearances: Priscilla Kennedy, Davis LLP for Mr. Gladue Christine J. Pratt, Field LLP for Edmonton Police Service