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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Neumann v. Canada (Attorney General),

 

2009 BCSC 324

Date: 20090311


Docket: 06-4256

Registry: Victoria

Between:

Hal Neumann

Plaintiff

And:

The Attorney General of Canada and

The Canada Revenue Agency

Defendants


Before: The Honourable Mr. Justice R. D. Wilson

Reasons for Judgment

Counsel for Plaintiff:

S. M. Kelliher

Counsel for Defendants:

A. Lord

Date and Place of Hearing:

March 2, 2009

 

Victoria, B.C.

I.

[1]                Following a seven-day jury trial, the plaintiff succeeded in his claims against the defendants. In result, the jury awarded him $300,000 on his negligence claim; $1 million on his claim for infringement or denial of his Charter right to be secure against unreasonable search; and directed the Minister responsible to extend an apology. The plaintiff now seeks an order fixing the scale of costs (which follow the event) at Scale C.

[2]                The plaintiff says his action involved difficult and novel issues of law; it was hard-fought; and, it was of public importance, involving proceedings against a government agency and relief under s. 24(1) of the Charter of Rights.

[3]                The plaintiff contends that his action is analogous to Kinloch v. Edmonds, 2008 BCSC 1684, in which the court fixed costs at Scale C.

[4]                In Kinloch the plaintiff sued police officers, their employer, the City of Victoria, and a corrections officer, for negligence, intentional torts and infringement or denial of Charter rights. There were, said the court, in particular three considerations taken into account in fixing that scale.

[5]                First, the case featured issues of more than ordinary complexity or difficulty. Second, the litigation was hard-fought in that, among other things, the police defendants conducted their defence in a clearly "hard-nosed" fashion. And, third, the case had a dimension of interest and importance to the community, beyond the particular interests of the individual plaintiff in that case.

II.

[6]                The principles governing the fixing of a scale of costs are prescribed in Appendix B to the Rules of Court - “Party and Party Costs”. The rule-makers start with the presumption that all matters are difficult. If a matter is of "ordinary difficulty" then costs are assessed at a per unit rate of $110 (Scale B). If a matter is of "little or less than ordinary difficulty", then costs are assessed at a per unit rate of $60 (Scale A). If a matter is of "more than ordinary difficulty", then costs are awarded at a per unit rate of $170 (Scale C).

[7]                The rule-makers have reduced the level of abstraction of the notions of "ordinary" and "difficult", by suggesting some factors which may be taken into account, in fixing the scale, namely:

(a) whether a difficult issue of law, fact or construction is involved;

(b) whether an issue is of importance to a class or body of persons, or is of general interest;

(c) whether the result of the proceeding effectively determines the rights and obligations as between the parties beyond the relief that was actually granted or denied.

III.

A difficult issue of law

[8]                The plaintiff argues that, for the first time, the court recognized a duty of care, owed by the defendant Canada Revenue Agency, to innocent third parties in criminal investigations. And, further, that the court had to apply the complex jurisprudence on the foreseeability of psychiatric injury, and the law of remedies available under s. 24(1) of the Charter of Rights, in relation to private law causes of action.

[9]                There was nothing novel or complex about those questions of law. Resolution of those issues was a matter of applying existing precedent to the evidence in this case.

[10]            Compared to other litigation in this court, the issues of law presented were of ordinary difficulty.

A difficult issue of fact

[11]            The lay witness testimony, including the examination for discovery extracts, was common to both causes of action, that is to say, the negligence claim and the Charter breach claim. That testimony addressed the application for the warrant to search, the execution of that warrant, and the impact of its execution on the plaintiff. There were some minor discrepancies in the memories of events during the execution of the warrant, but there was no significant issue of fact presented for resolution.

[12]            The plaintiff called one expert witness to render an opinion on the topic of causation. There was no evidence contradicting that expert opinion. And there was no significant issue of fact presented for resolution on that topic.

[13]            Compared to other litigation in this court, the issues of fact in this case were of less than ordinary difficulty.

A difficult issue of construction

[14]            If "construction" means interpretation or application of an instrument, then there were no issues of construction involved in this matter.

An issue is of importance to a class or body of persons

[15]            The plaintiff contends that his action goes beyond the interests of the Canada Revenue Agency and innocent third parties. He contends that the verdict of this jury impacts all agencies of government, by cautioning them to be more responsible in carrying out their duties. As well, argued the plaintiff, the action invoked Charter values, in a context other than criminal proceedings, with a jury of Canadians assigning value to Charter rights.

[16]            The Canada Revenue Agency is an agent of the executive branch of government. It is no different than a police force or corrections branch. They are no different than any other tortfeasor. Deterrence is one of the conventional objectives of tort law. And, presumably, Charter litigation as well.

[17]            Compared to other litigation in this court, the plaintiff’s action was of no more importance to a class or body of persons, than is ordinarily the case, when an agent of the executive branch of government is involved.

An issue is of general interest

[18]            It is said that this action attracted a national interest, and was followed by the media.

[19]            Compared to other litigation in this court, it is probably the case that the interest shown was more than ordinary.

The result of the proceeding effectively determines the rights and obligations as between the parties beyond the relief that was actually granted or denied

[20]            There is no evidence led, nor argument made, about what rights or obligations as between the parties were determined, beyond the relief granted by the jury.

[21]            The plaintiff argues further that this action was "hard-fought".[1] It is said that pre-trial motions were initiated by the defendants, but never pursued to any hearing. The defendants applied, unsuccessfully, for an adjournment of the trial on the eve of its commencement. In the course of the trial, while counsel was preparing for the leading of evidence, the defendants brought an application challenging the jurisdiction of the Supreme Court of British Columbia to hear the plaintiff’s claim against the Canada Revenue Agency.

[22]            The plaintiff does not say that the defendants were "hard-nosed", one of the considerations in the award of Scale C costs in Kinloch. There is no evidence in this case that these defendants could be characterized as "hard-nosed".

[23]            Compared to other litigation in this court, the prosecution, defence and development of this action was no less, nor more, than ordinary.

IV.

[24]            On balance, the plaintiff’s action was a matter of ordinary difficulty. The defendants will pay the plaintiff’s costs. They will be assessed on Scale B.

                   "R. D. Wilson, J."                    

The Honourable Mr. Justice R. D. Wilson



[1] For a comparative referent to "hard fought" (which did not attract Scale C costs), see: Mainland Sawmills Ltd. v. IWA-Canada Local 1-3567, 2008 BCSC 454.




[This page was added on May 6, 2010.]