ABOUSFIAN ABDELRAZIK Applicant v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA AND LAWRENCE CANNON, 2019 FC 769

Date: 20190603 Docket: T-1580-09 Citation: 2019 FC 769 Ottawa, Ontario, June 3, 2019 PRESENT: Madam Justice St-Louis BETWEEN: ABOUSFIAN ABDELRAZIK Applicant and HER MAJESTY THE QUEEN IN RIGHT OF CANADA AND LAWRENCE CANNON Defendants ORDER AND REASONS I. Introduction [ 1 ] By Order dated September 18, 2018, this Court reluctantly granted the Defendants’ Motion for an adjournment of the trial in order to allow for an application under

section 38 of the Canada Evidence Act , RSC, 1985, c C-5 [ Evidence Act ]. [ 2 ] The Court then confirmed having been aware of the fact that participants had been preparing for trial for months. The Court also recognized that the Attorney General of Canada (AGC) waited until the very last minute to confirm she would bring an application under

section 38 of the Evidence Act , and that an adjournment would cause particular prejudice to Mr. Abdelrazik, the Plaintiff, who had unequivocally confirmed his intention and readiness to proceed to trial. [ 3 ] Finally, in respect of these proceedings, the Court granted Mr. Abdelrazik all costs in preparation of the trial that have been thrown away as a result of the adjournment, in consideration of the tardiness of the AGC’s decision to bring a

section 38 application and the resulting request for a stay of the trial. [ 4 ] The parties were provided with an opportunity to reach an agreement on the quantum of the costs thrown away, but have been unable to do so. The Defendants have indicated that the parties agreed to resolve the disbursements separately, and I will thus not address this issue. II. Positions of the parties A. Mr. Abdelrazik [ 5 ] With his submissions, Mr. Abdelrazik filed a " “Plaintiff’s Bill of Costs” " detailing items pertaining to the fees and to the disbursements. In relation to fees, Mr.

Abdelrazik calculated the " “actual costs” " thrown away for the period covering March 1, 2018 to September 27, 2018, totalling $218,185.00 plus tax. He also calculated the " “solicitor-client costs” " , representing 90% of the actual costs, and they total $196,426.50 plus tax. [ 6 ] Mr. Abdelrazik filed an affidavit by Mr. Bijon Roy, lawyer at Champ & Associates. Mr. Roy outlines the work done in preparation for trial and introduced, as Exhibit A, a copy of the receipts for the disbursements. With his reply, Mr. Abdelrazik also filed an affidavit by Ms.

Angelica Go, legal assistant with Champ & Associates, outlining the actual costs incurred for " “research” " and " “preparation of costs materials” " , both items particularly challenged by the Defendants. [ 7 ] In his submissions, Mr. Abdelrazik first outlines the legal principles regarding the costs thrown away and their application to the present case. Referring to the Court’s discretionary power under Rule 400(1) of the Federal Courts Rules , SOR/98-106 [the Rules ] and to the factors outlined at Rule 400(3) of the Rules , Mr.

Abdelrazik argues that the Court’s reference to " “all costs” " in its September 18, 2018 decision, and the facts leading to the adjournment of the trial support granting the costs thrown away in preparation of the trial on the solicitor-client scale. [ 8 ] Mr. Abdelrazik further submits that the fees sought are reasonable, as they cover preparation from March 1, 2018 to September 27, 2018, and are calculated at hourly rates that are less than those charged by many Ontario counsel with similar levels of experience. Mr.

Abdelrazik stresses the unique circumstances of this case, and the fact that a lot of work will in fact have been wasted when preparation for trial resumes. [ 9 ] He also submits that the amounts sought are fair and that, given the circumstances; it would be grossly unfair for him to recover anything less that solicitor-client fees. [ 10 ] Finally, in reply to the Defendants’ submissions, Mr. Abdelrazik agrees that this is an appropriate case for an award of costs on a lump sum basis.

He stresses that this Court may take guidance from Ontario cases in which costs thrown away were awarded on a full indemnity basis, and that Justice Zinn’s decision in Teva Canada Limited v Pfizer Canada Inc , 2017 FC 610 [ Teva ] does not mean that the principles reflected in Ontario cases cannot be considered by this Court in awarding increased costs, including in deciding whether to

award them on a solicitor-client basis as per Rule 400(6)(

c) of the Rules. [11] Mr. Abdelrazik submits that costs on a solicitor-client basis are warranted as it is not always necessary to find a "“reprehensible,scandalous or outrageous conduct”" in order to support such an award, but it can be justified by reasons of public interest (Quebec(Attorney General) v Lacombe, 2010 SCC 38 at para 67 [Lacombe]), and can be granted "“to save harmless an innocent litigant”" (Bankof Nova Scotia v Fraser, 2001 FCA 267 [Fraser]). Finally, Mr.

Abdelrazik maintains that all fees are legitimately "“thrown away”" andthat, should the Court find it appropriate to award a lump sum in the form of a percentage, it ought to be calculated on his "“actualcosts”" not on his "“solicitor-client costs”" which was used by the Defendants in their calculations. B. The Defendants [12] The Defendants filed an affidavit by Ms. Linda Ott, legal assistant with the Department of Justice Canada, introducing a letter fromMs. Elizabeth Richards dated September 5, 2018, advising that the AGC would be filing an application under

section 38 of the EvidenceAct. [13] In their submissions, the Defendants challenge the scope of the costs qualified as "“thrown away”" by the Plaintiff, arguing thatmost costs claimed are not truly thrown away. [14] However, recognising that an accurate assessment of costs thrown away at this stage would undoubtedly prove complex and timeconsuming, the Defendants argue that a lump sum award, as contemplated by Rule 400(4) of the Rules, would promote the objectives ofthe Rules. [15] Relying on case law from the Federal Court, the Defendants indicate that lump sum awards generally range between 25% and 50%of actual fees and that, in this case, an award of 25% would be an accurate approximation of the portion of the work actually thrownaway as a result of the adjournment.

They ask, however, that two items be deducted from the calculation, hence the "“research”" of$9,671.80 and the "“preparation of costs materials”" of $3,186.00. [16] Regarding the Plaintiff’s claim for costs on solicitor-client scale, the Defendants respond that such a scale is not applicable as it isvery rarely granted and there is no evidence of a reprehensible, scandalous or outrageous conduct.

The Ontario decisions, relied upon bythe Plaintiff, have not been followed by the Federal Court (Teva at paras 6–7). [17] The Defendants argue that a lump sum award of 25% of the costs claimed on a solicitor-client basis, minus the two items to bededucted, is appropriate. They submit that an amount of $45,757.05 plus tax is therefore adequate. III. Decision [18] I agree with the parties that this is an appropriate case for an award of costs on a lump sum basis, as contemplated by Rule 400(4)of the Rules.

As the Defendants stated, an accurate assessment of costs thrown away at this stage would prove complex and timeconsuming. [19] I must first decide if the circumstances of this case warrant the grant of the costs thrown away on a solicitor-client scale. Mr.Abdelrazik submitted jurisprudence from Ontario Courts where thrown-away costs were awarded on a full indemnity basis. I agree withJustice Zinn’s position in Teva that this is not in keeping with this Court’s jurisprudence.

In my view, the AGC was punished, so tospeak, for the last minute adjournment, precisely by the Court granting the Plaintiff the thrown-away costs. Once granted, thedetermination of the quantum of these costs thrown away should follow the principles developed in regards to the quantum of the costson the merits. [20] Despite best efforts by Mr. Abdelrazik to demonstrate otherwise, I am satisfied that full indemnity, or solicitor-client costs thatamount to 90% of the actual costs, are still, in this Court, exceptional.

The Supreme Court of Canada confirmed that solicitor-clientawards "“are very rarely granted, for example if a party displays" "“reprehensible, scandalous or outrageous conduct”" "(Young v Young," (SCC), "[1993] 4 SCR 3"", at p 134)" "or if justified by reasons of public interest" "(Provincial Court Judges’ Assn ofNew Brunswick v New Brunswick (Minister of Justice), ""2005 SCC 44"", ""[2005] 2 SCR 286"", at para ""132""; Friends of theOldman River Society v Canada (Minister of Transport), " (SCC), "[1992] 1 SCR 3"", at p 80)""”" (Lacombe at para67). [21] I have not been convinced that the circumstances at hand amount to strong public interest reasons or to a reprehensible, scandalousor outrageous conduct on the part of the AGC, or warrant the need to "“chastise or punish reprehensible conduct and to save harmless aninnocent litigant from the otherwise unnecessary expense of litigation”" (Fraser at para 8). [22] I agree with Mr.

Abdelrazik that the lump sum award, if calculated as a percentage, should represent a percentage of his "“actualcosts”", hence of the amount of $218,185.00 plus tax. I am satisfied that the items he included are justified, and will not deduct the twoitems challenged by the AGC. [23] Given the particular circumstances at hand, a lump sum of 30% of the "“actual costs”" is justified, and I will thus grant Mr.Abdelrazik costs thrown away (fees) in the amount of $65,455.50 plus tax, payable forthwith. JUDGMENT THIS COURT’S JUDGMENT is that:

1 . The Defendants shall pay forthwith to the Plaintiff the sum of $65,455.50 plus applicable taxes. "Martine St-Louis" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1580-09 STYLE OF CAUSE: ABOUSFIAN ABDELRAZIK v HER MAJESTY THE QUEEN IN RIGHT OF CANADA AND LAWRENCE CANNON PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: MOTION IN writing order AND REASONS: ST-LOUIS J. DATED: June 3, 2019 APPEARANCES : Mr. Paul Champ For The Applicant Mr. J. Sanderson Graham Mr. Andrew Gibbs Mr.

Kirk Shannon For The Defendants SOLICITORS OF RECORD : Champ & Associates Ottawa, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Defendants MR. J. SANDERSON GRAHAM MR. ANDREW GIBBS MR. KIRK SHANNON