THE ACCESS INFORMATION AGENCY INC.

Orders and Reasons

THE ACCESS INFORMATION AGENCY INC.
v.
DEPARTMENT OF TRANSPORT
File No. PR-2006-031

Order and reasons issued
Wednesday, May 21, 2008

TABLE OF CONTENTS

IN THE MATTER OF a complaint filed by The Access Information Agency Inc. under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C. 1985 (4th Supp.), c. 47;

AND FURTHER TO the Canadian International Trade Tribunal’s preliminary indication of the level of complexity of the complaint case and the amount of its cost award.

BETWEEN

 

THE ACCESS INFORMATION AGENCY INC.

Complainant

AND

 

THE DEPARTMENT OF TRANSPORT

Government Institution

ORDER

In its decision of March 16, 2007, the Canadian International Trade Tribunal, under section 30.16 of the Canadian International Trade Tribunal Act, awarded The Access Information Agency Inc. its reasonable costs incurred in preparing and proceeding with the complaint. The Canadian International Trade Tribunal’s preliminary indication of the level of complexity for this complaint case was Level 1, and its preliminary indication of the amount of the cost award was $1,000. After considering the submissions of the parties concerning that determination, the Canadian International Trade Tribunal deems it appropriate to amend its preliminary indication of the level of complexity for this complaint case. Therefore, the amount of the cost award made by the Canadian International Trade Tribunal is $2,500. The Canadian International Trade Tribunal directs the Department of Transport to take appropriate action to ensure prompt payment.

Serge Fréchette
Serge Fréchette
Presiding Member

Hélène Nadeau
Hélène Nadeau
Secretary

STATEMENT OF REASONS

INTRODUCTION

1. In a determination issued on March 16, 2007, the Canadian International Trade Tribunal (the Tribunal), under section 30.16 of the Canadian International Trade Tribunal Act,1 awarded The Access Information Agency Inc. (AIA) its reasonable costs incurred in preparing and proceeding with the complaint. The Tribunal’s preliminary indication of the level of complexity for the complaint case was Level 1, and its preliminary indication of the amount of the cost award was $1,000, in accordance with its Guideline for Fixing Costs in Procurement Complaint Proceedings (the Guideline).

2. On March 27, 2007, the Tribunal received AIA’s submissions concerning its disagreement with the preliminary indication of the level of complexity for the complaint case. On April 2, 2007, the Department of Transport (Transport Canada) responded to those submissions. On April 4, 2007, AIA filed a response to Transport Canada’s comments.

POSITIONS OF THE PARTIES

AIA’s Position

3. AIA made submissions seeking an award greater than $1,000, arguing that the Tribunal was fettering its discretion in not departing from the Guideline and that this complaint justified such a departure. According to AIA, the flat rates set in the Guideline are too low in comparison with costs that were awarded before the application of the Guideline and with common practice in Ontario. In support of this assertion, AIA filed a copy of a publication by the Costs Subcommittee of the Civil Rules Committee of Ontario entitled “Information for the Profession”.

4. AIA submitted that, in this complaint, the Tribunal intended to follow a rigid practice in the award of costs, similar to the one that was explicitly condemned by the Federal Court of Appeal in Canada (Attorney General) v. Georgian College of Applied Arts and Technology (C.A.).2 In this connection, AIA requested that the Tribunal depart from the Guideline and exercise its discretion “judicially” in awarding costs, which meant, according to AIA, that the Tribunal’s discretion should not be exercised in an automatic or arbitrary manner, but in accordance with the facts of this case and the general principles governing the awarding of costs by judicial tribunals. In this regard, AIA suggested that, in applying the Guideline, the Tribunal had adopted systematic practices that fetter its discretion.

5. AIA further contested the validity of the Guideline, submitting that the flat rates corresponding to the three categories of complaint were not representative of the costs awarded by the Federal Court of Canada or other Canadian tribunals. AIA also argued that the Tribunal does not have the authority to establish guidelines for the awarding of costs in procurement complaints since, according to AIA, no legislative basis exists for doing so.

6. As to the complexity of the complaint case and proceedings, AIA noted that it had to argue many procedural issues, request the production of documents and submit additional submissions in response to Transport Canada’s submissions.

7. In response to Transport Canada’s April 2, 2007, submissions claiming that AIA had provided no evidence to justify $47,700 in fees for counsel and disbursements, AIA argued that the fees and costs of at least $47,700 that it was claiming had been incurred before the Tribunal issued its decision and that the proof of payment of fees for counsel and disbursements was attached to Exhibit P-2, which was appended to its submissions of April 4, 2007. AIA also argued that other costs had been incurred since then. As for Transport Canada’s allegations that AIA had suggested that the preliminary indication of the level of complexity for the complaint case was Level 1, AIA referred the Tribunal to the complaint form that it filed on October 31, 2006, where, under the heading “D. Costs”, it reads as follows:

Subject to further evidence that may emerge if an inquiry is conducted, AIA will request, pursuant to section 30.16 of the CITT Act, that the Tribunal award AIA its reasonable costs incurred in preparing and proceeding with the complaint, which costs are to be paid by TC. According to AIA, the preliminary indication of the level of complexity for this complaint case is Level 1, and the preliminary indication of the amount of the cost award is $1,000. If TC does not agree with the preliminary indication of the level of complexity for the complaint case or the preliminary indication of the amount of the cost award, the parties may file submissions with the Tribunal, as contemplated by the Guideline.

[Translation, emphasis added]

It declared that it had filed all its submissions without prejudice to all its other rights and remedies, including that of claiming professional fees incurred in pursuing the complaint.

8. AIA also noted that the Tribunal had assigned many resources to manage the complaint.

9. AIA requested that the Tribunal review the preliminary indication of the level of complexity for the complaint case, which is Level 1, issue an order against the government institution pursuant to subsection 30.16(1) of the CITT Act and order the government institution to compensate AIA by an amount of $47,700.

Transport Canada’s Position

10. With regard to the validity of the Guideline, Transport Canada affirmed that it disagreed with AIA’s argument that the rates set in the Guideline were not representative of costs granted by other Canadian tribunals. Transport Canada also noted that AIA’s argument that the Tribunal did not have the authority to establish the Guideline was not valid, since the authority to issue directives is inferred from the discretion bestowed upon an administrative authority. Transport Canada also argued that AIA did not raise any serious reasons that justified a departure from the Guideline in the circumstances of this case and the award of $47,700 in costs. According to Transport Canada, even if the Tribunal considered that there was reason to depart from the Guideline, the means put forward by AIA in its submissions of March 27, 2007, in support of its position were without merit.

11. With regard to the Tribunal’s discretion, Transport Canada submitted that the Tribunal was free to depart from the levels of complexity set in the Guideline, as expressly set out in the Guideline for that matter, and that the decision not to depart from it also implied discretion. Transport Canada was of the view that the Tribunal did not fetter its discretion by applying the Guideline and indicating that the level of complexity for this case was Level 1.

12. With regard to the complexity of the procurement, Transport Canada submitted that the complexity level assigned by the Tribunal, i.e. Level 1, was reasonable in this case based on the reasons given by the Tribunal in its determination, and in its opinion, all the more so since this was the level of complexity that AIA and Transport Canada had suggested in their submissions regarding the complaint.

13. For all these reasons, Transport Canada was of the opinion that the facts of this case did not justify a departure from the Guideline, since Level 1 was appropriate in this case, and asked that the Tribunal not grant AIA’s request.

TRIBUNAL’S ANALYSIS

14. The Tribunal has carefully reviewed all the submissions filed by the parties. With regard to the Tribunal’s jurisdiction and discretion, the Tribunal reiterates its statement in Ecosfera Inc. v. Department of the Environment,3 a case where counsel for the complainant had raised a similar question:

17. Pursuant to subsection 30.16(1) of the CITT Act, the Tribunal can award costs of proceedings before it, and the costs may be fixed at a sum certain or may be taxed. This power is discretionary. Although this provision states that this power is “[s]ubject to the regulations . . .”, and although paragraph 40(l) states that “[t]he Governor in Council may make regulations . . . respecting the awarding of costs by the Tribunal under section 30.16 . . .”, there is no regulatory provision on this point. Thus, the Tribunal believes that the matter of costs in inquiry proceedings is left to its sole discretion. Contrary to Ecosfera’s argument, there is nothing in the wording of the CITT Act, including paragraph 40(l), that prevents the Tribunal from exercising its discretion in making decisions on costs with respect to procurement complaints.

18. In the exercise of its discretion under the CITT Act, the Tribunal issued the Guideline in order to “. . . provide guidance to parties seeking to recover the costs of participating in procurement complaint proceedings.”4 Ecosfera argues that the Guideline is not valid because the Tribunal does not have the authority to adopt it. The Tribunal is of the view that it is clearly established in Canadian law that administrative tribunals may issue such guidelines or directives in the exercise of their discretion, provided that, in so doing, they do not abandon, limit or detract from the exercise of the discretion given to them by law. The Tribunal is further of the view that, while some statutes expressly authorize the issuance of directives, the authority to issue directives can be inferred from the discretion bestowed upon an administrative authority.5

19. Ecosfera also contests the validity of the Guideline on the basis of its argument that the rates set in the Guideline are not reasonably representative of the costs and expenses granted by the Federal Court of Canada or other Canadian courts of justice. The Tribunal is not convinced that the publication entitled “Information for the Profession”, filed by Ecosfera, proves that the rates set in the Guideline are unrepresentative of costs granted by the majority of courts of justice in Canada. In this respect, the document in question merely provides rates which represent “. . . the maximums that were available under the costs grid”, which “. . . would apply only to the more complicated matters . . . .” [translation] Thus, the rates indicated are not necessarily those that are awarded in most cases. In any case, even if the level of compensation set in the Guideline were not representative of those granted by the majority of courts of justice in Canada, the Tribunal does not see how that would render the Guideline invalid. Consequently, there is nothing that, in itself, casts doubt on the validity of the Guideline.

20. In Georgian College, . . .  the Federal Court of Appeal held that the Tribunal could not fetter its discretion by adhering to an automatic practice of following guidelines in awarding costs of proceedings, under subsection 30.16(1) of the CITT Act. Thus, the Tribunal will fix the costs of the proceedings and issue its cost order in this case in light of this reminder from the Federal Court of Appeal.

15. AIA also claimed that, in general, flat rates set in the Guideline are too low in comparison with costs that were previously awarded under the 1999 guidelines. The Tribunal finds it appropriate to reiterate its statement in Ecosfera:

. . . In this connection, the Tribunal must note that, in fact, the costs awarded were sometimes higher under the 1999 guidelines. These, however, are no longer in force, and the Tribunal has since reconsidered the matter of costs and adopted an approach that it considers more representative of that generally followed by Canadian courts of justice.6 In the Tribunal’s view, there is nothing in Ecosfera’s submissions concerning a comparison between the awards under the 1999 guidelines and those under the Guideline to justify the Tribunal reverting to the approach followed in the past.

16. The Tribunal sees no valid reason in this case to depart from the reasoning that it adopted in Ecosfera with regard to these issues.

17. In giving its preliminary indication, the Tribunal considered that the level of complexity for the complaint case was Level 1, which corresponds to an award of $1,000 under the Guideline. AIA made submissions expressing disagreement with this preliminary indication and requested that the Tribunal depart from the Guideline by awarding it costs in the amount of $47,700. Taking those submissions into consideration, the Tribunal must now determine whether it is appropriate to depart from the Guideline or amend its preliminary indication of the level of complexity and the amount of its cost award.

18. In this connection, the Tribunal points out that it does not consider itself bound by the Guideline and believes that it is free to depart from the levels of complexity and the amounts of compensation set in the Guideline where circumstances warrant it. Moreover, as paragraph 1.3 of the Guideline states, “. . . each case will be considered individually, and the guideline is not intended to replace, limit or detract from the discretion of the Tribunal . . . .” Furthermore, paragraph 4.2.2 allows parties to make submissions on, among other things, “. . . the reason why the guideline should not be followed.” A decision not to accept such submissions does not constitute evidence that the Tribunal has adopted a rigid practice in awarding costs.

19. Thus, in this case, the Tribunal reviewed AIA’s submissions, in particular as to whether, in light of the relevant facts, there was reason to depart from the Guideline. The Tribunal therefore did not follow an “automatic” or “inflexible” practice in applying the principles stated in the Guideline. On the contrary, it considered whether they should apply in this case.

20. Having considered the parties’ submissions, the Tribunal believes that AIA’s complaint, the Tribunal’s inquiry and the proceedings did not present an unusually high level of complexity that would justify the Tribunal exceeding the cost thresholds set in the Guideline. In light of what it stated in the past in Ecosfera, the Tribunal also finds that AIA has not demonstrated that these thresholds did not correspond to those of most judicial tribunals in Canada. In addition, the Tribunal is of the opinion that AIA’s submissions do not cast doubt on the relevance of the principles and criteria set in the Guideline for the awarding of costs.

21. Paragraph 2.1 of the Guideline sets out certain principles that the Tribunal considers relevant to its discretion concerning the awarding of costs in this inquiry. Paragraph 2.1 states the following:

The costs awarded normally represent a partial indemnity.

The costs awarded are not intended to be a source of profit for the claimant.

The assessment and taxation processes should be efficient and fair to all parties.

22. The Tribunal points out that AIA itself, in its complaint form filed on October 31, 2006, claimed that the preliminary indication of the level of complexity for the complaint case was Level 1 and the preliminary indication of the amount of the cost award was $1,000. Aside from a clear desire to profit from the complaint proceedings, the Tribunal does not see how, in this case, the change in complexity between the filing of the complaint and the Tribunal’s determination in favour of the complainant could warrant a disparity as large as $46,700.

23. The Tribunal therefore sees no justifiable reason to depart from the Guideline. However, taking into account all the relevant circumstances, the Tribunal deems it appropriate to review the preliminary indication of the level of complexity and the amount of the cost award given in its determination of March 16, 2007.

24. The Tribunal generally applies three criteria in determining the level of complexity of a complaint: (i) the complexity of the procurement, (ii) the complexity of the complaint and (iii) the complexity of the proceedings. In the Tribunal’s view, these criteria are appropriate, and there is no reason to depart from them in this case. These criteria are generally recognized as carrying great weight in the award of costs in judicial proceedings.

Complexity of the Relevant Procurement

25. In its determination, the Tribunal indicated that the level of complexity of the procurement was low, since it concerned the provision of consulting services in the access to information and privacy field. The Tribunal considers that no new evidence has been submitted in this regard and upholds its decision regarding this criterion.

Complexity of the Complaint

26. In its determination, the Tribunal stated that the level of complexity for the complaint case was low, in that it concerned issues of which the essential facts were relatively straightforward. The Tribunal notes that AIA submitted no new evidence in this regard. However, the Tribunal points out that the complaint filed by AIA concerned three separate grounds. The fact that the complaint involved several grounds has inevitably made it more complex, thus raising its complexity to the average level.

Complexity of the Proceedings Relating to the Complaint

27. With regard to the complexity of the proceedings, the Tribunal indicated in its statement of reasons that the proceedings were moderately complex, since there had been one intervener and two motions had been filed. In paragraph 5 of its submissions of March 27, 2007, AIA highlighted the various procedural steps that it then had to follow as part of the Tribunal’s inquiry. In this regard, in addition to the normal procedural steps, AIA noted that it had had to request the production of documents and submit additional submissions in response to Transport Canada’s submissions. AIA also argued that the order issued in response to the government institution’s motion for an extension of time and for the rescission of a postponement of award order constituted a precedent.

28. The Tribunal notes that AIA said that it had to argue many procedural issues, including, in particular, three objections made to Transport Canada. AIA cannot claim the costs of these objections, since they occurred before the complaint was filed with the Tribunal. However, the Tribunal accepts AIA’s submission that certain proceedings undertaken during the inquiry itself exceeded the normal scope of inquiries conducted by the Tribunal. The Tribunal nonetheless maintains its initial determination that the complexity of the proceedings was average, but awards an additional $100 for costs incurred in filing the motion for an order for the production of documents.

29. Finally, the Tribunal points out that the proof of payment of fees on file is of no relevance in determining the amount of the award. The same is true for the number of resources assigned to manage the complaint within the Tribunal itself.

30. In light of the foregoing, the Tribunal deems it appropriate to amend the preliminary indication of the level of complexity for the complaint case and to fix it at Level 2 by adding $100, thus bringing the amount of the cost award made by the Tribunal to $2,500.

CONCLUSION

31. In its decision of March 16, 2007, the Tribunal, under section 30.16 of the CITT Act, awarded AIA its reasonable costs incurred in preparing and proceeding with the complaint. The Tribunal’s preliminary indication of the level of complexity for this complaint case was Level 1, and its preliminary indication of the amount of the cost award was $1,000. After considering the submissions of the parties concerning that determination, the Tribunal deems it appropriate to amend the preliminary indication of the level of complexity for this complaint case. Therefore, the amount of the cost award made by the Tribunal is $2,500. The Tribunal directs Transport Canada to take appropriate action to ensure prompt payment.

1 . R.S.C. 1985 (4th Supp.), c. 47 [CITT Act].

2 . [2003] 4 F.C. 525 [Georgian College].

3 . (3 October 2007), PR-2007-004 (CITT) [Ecosfera].

4 . Guideline, para. 1.3.

5 . Brown and Evans, Judicial Review of Administrative Action in Canada, Vol. 3, Chap. 12, para. 12:4421 at 12-43; Patrice Garant, Droit administratif, 5th ed., Les Éditions Yvon Blais, 2004 at 294.

6 . The Guideline includes the following comment on how the rates were set: “The flat rates were determined after a survey of the existing rates in other courts of justice in Canada and were based on the consideration that indemnification was to be partial only. The initial figure was established at a level generally consistent with the Federal Court of Canada tariff for fees and was then increased by 50 percent to allow for disbursements.”