Letter Decision No. LET-AT-R-250-2002

August 29, 2002

Application by the Council of Canadians with Disabilities against VIA Rail Canada Inc.: Request for interim order of costs

File No.: 
U3570/00-81

Pursuant to Decision No. LET-AT-R-232-2002, dated August 14, 2002, the Canadian Transportation Agency (Agency) determined that it was necessary to conduct a second technical inspection of the Renaissance cars in order to confirm changes made by VIA Rail Canada Inc. (VIA) to the dimensions of some accessibility features of the Renaissance cars since the filing of the Final Report: Canadian Transportation Agency Inspection Report of VIA Rail Canada Inc.'s Renaissance Cars (Final Inspection Report).

Following the issuance of this Decision, by letter dated August 16, 2002, the Council of Canadians with Disabilities (CCD) filed a request for inter alia an interim order of costs of the proceeding to date.

By Decision No. LET-AT-R-236-2002, dated August 21, 2002, the Agency granted VIA until August 26, 2002, to file its answer with the Agency and to provide a copy to CCD. CCD was granted until August 28, 2002 to file its reply with the Agency and provide a copy to VIA.

By letter dated August 23, 2002, in compliance with Decision No. LET-AT-R-232-2002, CCD advised the Agency that it had retained Ron Woollam as the engineer to attend the additional technical inspection of the Renaissance trains on the condition that the Agency order VIA to pay Mr. Woollam's fee of $900.00 per day to attend the viewing, report to CCD and prepare comments on the Agency's revised Final Inspection Report, plus his reasonable expenses for doing so. CCD stated that if no interim cost order is made, Mr. Woollam would not attend the inspection on CCD's behalf.

By Decision No. LET-AT-R-239-2002, dated August 23, 2002, VIA was required to address the issues raised by CCD in its letter of the same date together with its answer to CCD's request for costs. CCD was allowed to have until August 28, 2002 to file its reply.

By letter dated August 23, 2002, VIA filed its answer, indicating that no interim order as to costs should be made, adding that it is willing to make an ex gratia payment to CCD to cover the travel expenses of Mr. Woollam. By letter dated August 26, 2002, CCD filed its reply, indicating that it had nothing else to add to its earlier submissions.

Positions of the parties

In support for its request, CCD refers to section 25.1 of the Canada Transportation Act, S.C., (1996), c. 10 (CTA), Rule 400 of the Federal Court Rules, 1998, SOR/98-106 (FCR), and a case from the Ontario Superior Court of Justice, Rogers v. Sudbury (Administrator of Ontario Works) 57 O.R. (3d) 467.

Referring to section 25.1 of the CTA and Rule 400 (6)(a) and (b) of the FCR, CCD submits that the Agency's discretionary power over the amount and allocation of costs includes the authority to award costs for a particular issue or step in a proceeding and to award costs up to and including a specified step in a proceeding. CCD states that, pursuant to Rule 400(3)(c), (g), (h), (i), (k) of the FCR, salient factors to consider in awarding costs include the importance and complexity of the issues; the amount of work; whether the public interest in having the proceeding litigated justifies a particular award of costs; any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding; and, whether any step in the proceeding was improper, vexatious or unnecessary.

Referring to VIA's conduct, CCD is of the view that it is appropriate and just that CCD be awarded its costs of its application to date. CCD states that VIA's conduct had the effect of lengthening the duration of the whole process. CCD further adds that its ability to fulfill its mandate is hamstrung by its financial responsibilities to this application. CCD is of the view that an award of costs would not only serve as a reminder to VIA that there are consequences for disobeying direct orders of the Agency and the Federal Court, but would also provide CCD with the financial ability to fulfill other aspects of its mandate to Canadians with disabilities.

CCD states that it made the application in the public interest, that it has no expectation of private gain from its application, but seeks only to improve the lives of Canadians with disabilities, ensuring their equal access to transportation readily available to other Canadians. CCD submits that, regardless of the ultimate outcome of CCD's application, the factors indicated in Rule 400(3) of the FCR overwhelmingly favour an award of costs to CCD.

VIA indicated that it is of the view that no interim order as to costs should be made as there were no other changes to the measurements of the cars save and except those previously noted in VIA's letters of July 29, 2002, and August 9, 2002. VIA further added, that it is willing to make ex gratia payment to CCD to cover the travel expenses of Mr. Woollam.

Relevant statutory provisions

Section 25. 1 of the CTA provides as follows:

25.1(1) Subject to subsections (2) to (4), the Agency has all the powers that the Federal Court has to award costs in any proceeding before it.

(2) Costs may be fixed in any case at a sum certain or may be taxed.

(3) The Agency may direct by whom and to whom costs are to be paid and by whom they are to be taxed and allowed.

(4) The Agency may make rules specifying a scale under which costs are to be taxed.

Rules 400 and 401 of the Federal Court Rules, 1998, SOR/98-106 (FCR), provide in part as follows:

400. (1) The Court shall have full discretionary power over the amount allocation of costs and the determination of by whom they are to be paid.

(2) Costs may be awarded to or against the Crown.

(3) In exercising its discretion under subsection (1), the Court may consider

  1. the result of the proceeding;
  2. the amounts claimed and the amounts recovered;
  3. the importance and complexity of the issues;
  4. the apportionment of liability;
  5. any written offer to settle;
  6. any offer to contribute made under rule 421;
  7. the amount of work;
  8. whether the public interest in having the proceeding litigated justifies a particular award of costs;
  9. any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;
  10. the failure by a party to admit anything that should have been admitted or to serve a request to admit;
  11. whether any step in the proceeding was:

    1. improper, vexatious or unnecessary, or
    2. taken through negligence, mistake or excessive caution;
  12. whether more than one set of costs should be allowed, where two or more parties were represented by different solicitors or were represented by the same solicitor but separated their defence unnecessarily;
  13. whether two or more parties, represented by the same solicitor, initiated separate proceedings unnecessarily;
  14. whether a party who was successful in an action exaggerated a claim,including a counterclaim or third party claim, to avoid the operation of rules 292 to 299; and
  15. any other matter that it considers relevant.

(4) The Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs.

(5) Where the Court orders that costs be assessed in accordance with Tariff B, the Court may direct that the assessment be performed under a specific column or combination of columns of the table to that Tariff.

(6) Notwithstanding any other provision of these Rules, the Court may

  1. award or refuse costs in respect of a particular issue or step in a proceeding;
  2. award assessed costs or a percentage of assessed costs up to and including a specified step in a proceeding;
  3. award all or part of costs on a solicitor-and-client basis; or
  4. award costs against a successful party.

(7) Costs shall be awarded to the party who is entitled to receive the costs and not to the party's solicitor, but they may be paid to the party's solicitor in trust.

401. (1) The Court may award costs of a motion in an amount fixed by the Court.

(2) Where the Court is satisfied that a motion should not have been brought or opposed, the Court shall order that the costs of the motion be payable forthwith.

Analysis

As stated by the Agency in Decision No. LET-AT-R-377-2001 dated August 15, 2001, pursuant to section 25.1 of the CTA, the Agency has all the powers that the Federal Court has to award costs in any proceeding before it. The powers of the Court, in turn, are set out in the FCR, notably under Rule 400. This section establishes that the Court has full discretionary power over the amount and the allocation of costs as well as the determination of by whom they are to be paid. Pursuant to Rule 400(6)(a) of the FCR, an award of costs may be made in respect of a particular issue or step in a proceeding. Furthermore, the new Rule 401(1) of the FCR states that an award of costs of a motion may be made.

As stated by the Agency in previous decisions, including Decision No. LET-AT-R-377-2001 in this case, costs are to be compensatory in nature and, as such, are generally to be awarded at the end of the proceedings. The Agency finds no compelling reasons to depart from this principle with respect to CCD's request for costs of the proceeding to date. As stated by the Agency in Decision LET-AT-R-377-2001, given the particular circumstances of the present case, the Agency will be in a better position to address the issue of costs with a more balanced view of all issues and aspects raised by the parties once a final decision on CCD's application is issued. The Agency will then entertain submissions as to costs, if deemed appropriate.

However, with respect to CCD's request for costs for the technical inspection, the Agency is of the view that there are circumstances which warrant the issuance of an interim order of costs for this part of the proceeding. Furthermore, the Agency is also of the view that these circumstances justify the making of this interim costs award in advance of the technical inspection with the specific amount of the costs to be paid to be ascertained following the inspection and upon completion of the work. In this way, the award of costs, although issued prior to the inspection, is nevertheless compensatory in nature and is mandated by the particular circumstances of the case, as follows.

The Agency notes that VIA opposes any interim order as to costs. VIA is of the view that no interim order as to costs should be made as there were no other changes to the measurements of the cars save and except those previously noted in VIA's letters of July 29, 2002, and August 9, 2002. However, because the Agency was not informed of those modifications by VIA and because those modifications bear directly on the very mandate the Agency is to exercise in the present case, the Agency, in Decision No. LET-AT-R-232-2002, determined that it was necessary to conduct a second technical inspection of the Renaissance cars in order for the Agency to properly carry out its mandate. Furthermore, the Agency notes that having to hold a second technical inspection that was not contemplated will delay the issuance of a final decision in the present matter.

The Agency also notes that CCD's engineer, Ron Woollam, will not attend the inspection on CCD's behalf if CCD does not receive an award of costs to pay his fees and his reasonable expenses for doing so. The Agency further notes that VIA is willing to make ex gratia payment to CCD to cover the travel expenses of CCD's engineer, but that VIA's submission was silent on the issue of Mr. Woollam's fees.

The Agency is of the view that factors such as the circumstances giving rise to this second inspection, CCD's substantial interest in having an engineer attend the technical inspection, the fact that natural justice commands the effective participation of CCD's engineer in the inspection, and the delay caused by the holding of the inspection, all militate in favour of awarding CCD the costs to have its engineer attend the second technical inspection and file comments with the Agency inasmuch as any changes to the measurements have a bearing on his previous report on file with the Agency.

With respect to Mr. Woollam's fees, based on Mr. Woollam's credentials as reflected in hisCurriculum Vitae, filed with the Agency in support of CCD's final submission, the Agency is of the view that fees of $900.00 per day to attend the second technical inspection and file comments are within a reasonable range of market rates for similar services.

With respect to Mr. Woollam's travel expenses, the Agency is of the view that CCD is entitled to an award of costs for Mr. Woollam's reasonable and proper travelling and living expenses and that these costs, supported by receipts, will be reimbursed in accordance with the Treasury Board Travel Directive in effect at the time of travel and shall not exceed the rates prescribed in that Directive.

Conclusion

Therefore, in accordance with the foregoing, the Agency:

  1. denies CCD's request for an interim order for costs in the proceeding to date. The Agency will entertain submissions as to costs, if deemed appropriate, once a final decision is issued on CCD's application.
  2. grants CCD's request for an order for costs with respect to the second technical inspection in accordance with the Agency's above directions. These costs will be borne by VIA in any event of the cause and should be paid by VIA immediately upon receipt of invoices and receipts evidencing the fees and expenses. Should the parties be unable to reach an agreement on the sum to be paid, either party may return the issue to the Agency for a specific determination.
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