Édouard Bourque and Paul Bourque (Appel-
lants)
v.
National Capital Commission (Respondent)
Court of Appeal, Jackett C.J., Cameron and
Sweet D.JJ.—Ottawa, April 25, 1972.
Practice—Costs—Jurisdiction—Judgment of Exchequer
Court—Taxation of—Application of Federal Court Rules.
On June 9, 1970, the Exchequer Court gave judgment
with costs for defendants in an expropriation action. On
June 1, 1971, the Federal Court Act came into force. In
August 1971 defendants applied to the Trial Division of this
Court for an order for taxation of the costs on the Exche
quer Court scale. The Trial Division dismissed the
application.
Held, dismissing an appeal, there is no authority for this
motion before the costs have been taxed.
Semble, there is no apparent difference in the scale of
fees payable to expert witnesses under the Exchequer Court
Rules (Tariff A, item 42, par. 3) and the Federal Court
Rules (Tariff A, par. 4(2) and Tariff B, par. 2(2)).
Semble also, those parts of the Federal Court Rules as to
amounts and procedure on a taxation of costs are retrospec
tive, being matters of procedure.
Wright v. Hale (1860) 30 L.J.Ex. 40, referred to.
APPEAL from Trial Division.
H. Soloway, Q.C. for appellants.
George Ainslie, Q.C., and Eileen Mitchell
Thomas, Q.C. for respondent.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—In an expropriation
case, judgment was delivered by the Exchequer
Court of Canada on June 9, 1970, which judg
ment provided inter alfa that, "The defendants
are entitled to recover their costs after taxa
tion". The defendants in that action are the
appellants in this appeal. When the Federal
Court Act came into force on June 1, 1971,
those costs had not been taxed. In August,
1971, the appellants made a motion before the
Trial Division for an order directing that the
defendants' party and party bill of costs, includ
ing fees to expert witnesses, be taxed on the
scale of fees allowed in the Exchequer Court of
Canada on June 9, 1970, when judgment was
pronounced. That motion was dismissed "sub-
ject to a reference of the taxation to the desig
nated officer of the Court ..." by a judgment
of the Trial Division delivered on August 23,
1971. This is an appeal from that judgment.
The motion made in the Trial Division was
apparently designed to raise, and have deter
mined, the question of law as to whether the
Rules of Court adopted under the Federal Court
Act or those previously in force apply to the
taxation of the costs awarded by the judgment
in this expropriation case. We know of no
authority for such a motion and, on that ground
alone, we are of the view that the motion was
rightly dismissed.
Whether the Exchequer Court Rules or the
Federal Court Rules are applicable to the taxa
tion of costs awarded to the appellants, the
procedure is substantially the same. The party
entitled to costs may proceed to taxation of his
costs before a taxing officer and, if dissatisfied
with the taxation, he is entitled to a review of
the taxation by the Court. This appears from
Rule 263 of the Exchequer Court Rules, which
reads as follows:
263. All costs between party and party shall be taxed
pursuant to Tariff A contained in the Appendix to these
Rules. Such costs shall be taxed by the Registrar or by his
Deputy, and they shall be the Taxing Officers of the Court,
exercising exclusive authority in respect of such taxation;
subject, however, to review by the Court.
and from Rule 346(2) of the Federal Court
Rules, which reads as follows:
Rule 346. (2) Costs shall be taxed by
(a) a prothonotary, each of whom is a taxing officer, or
(b) an officer of the Registry designated by order of the
Court as a taxing officer,
subject to review by the Court upon the application of any
party dissatisfied with such a taxation.
Not only are we unaware of any provision in
either set of Rules for an application to the
Court for a decision on some question of princi
ple before proceeding to taxation but we are of
opinion that such a step is not advisable. Nei
ther the parties nor the Court should be put to
the expense and trouble of having questions of
principle determined unless it becomes neces
sary to do so to determine the rights of the
parties. Whether any such question is of any
practical significance in this case cannot be
ascertained until the appellants' costs have been
taxed by a taxing officer.
In this case, the notice of motion makes spe
cial mention of "fees to expert witnesses",
apparently on the basis that less will be taxable
in respect of such fees under the new Rules
than under the Exchequer Court Rules. It is not
apparent to us that this is so. The applicable
provision in Tariff A of the Exchequer Court
Rules, which provides for fees to be allowed "in
the taxation of costs between party and party",
would seem to be the third paragraph of item
42, which reads as follows:
In expropriation cases, witnesses called upon to give
opinion evidence as to the values of the land expropriated,
in lieu of the per diem fee allowed to witnesses under Items
40, 41 and the first paragraph of Item 42, may be granted a
special per diem fee for attendance in Court, plus an allow
ance for the time necessarily and usefully spent by them in
viewing the property in question, for necessary searches at
Registry Offices and for other necessary work done by
them to assist them in arriving at their valuation of the
expropriated property, such allowances to be fixed by the
Taxing Officer subject to review by the Court.
In other words, it allows "a special per diem
fee for attendance in Court, plus an allowance
for the time necessarily and usefully spent ...
to assist them in arriving at their valuation .. .
such allowances to be fixed by the Taxing Offi
cer subject to review by the Court". In the
Federal Court Rules, we find that paragraph
4(2) of Tariff A provides as follows:
(2) In lieu of making a payment under section 3, there
may be paid to a witness who appears to give evidence as
an expert a reasonable payment for the services performed
by the witness in preparing himself to give evidence and
giving evidence.
and that Tariff B, which regulates the amounts
that may be allowed in a party and party taxa
tion, provides (paragraph 2(2)) as follows:
2. (2) Disbursements
(a) all disbursements made under Tariff A may be
allowed, except that payments to a witness under para
graph 4(2) may only be allowed to the extent directed by
the Court under Rule 344(7),
(b) such other disbursements may be allowed as were
essential for the conduct of the action.
(It is true that this provision contemplates a
direction from the Court within a time that has
expired in this case but we have no doubt that
such time would be extended, in the circum
stances of this case, under Rule 3(c)). It is not
apparent that the amounts that would be
allowed for expert witnesses in an expropriation
case under the Federal Court Rules are either
more or less than they would be under the
Exchequer Court Rules.
In the circumstances, it is preferable not to
express an opinion on the question of principle
that was argued on the motion in the Trial
Division. That should be left until it arises in an
appeal where it is not merely an academic ques
tion and after the parties whose rights will be
affected have had an opportunity to be heard. It
is not an easy question upon which to reach a
conclusion. We are particularly impressed by
certain of the decisions cited by the parties,
such as: Delap v. Charlebois (1899) 18 P.R.
417; Earle v. Burland (1904) 8 O.L.R. 174; Des
Brisay v. Canadian Government Merchant
Marine Ltd. [1940] 4 D.L.R. 171; and Gar
Wood Industries v. Sicard Ltée [1950] Ex.C.R.
136. On the other hand, the principle estab
lished as long ago as 1860 in Wright v. Hale 30
L.J.Ex. 40, was not discussed in those cases
and is still regarded, by at least one authority,
as good law. See Maxwell on Interpretation of
Statutes 12th ed., p. 224, where it is said that
"Statutes affecting costs are of a procedural
nature for the purposes of the rules about
retrospectivity". In Wright v. Hale, Pollock
C.B. said at p. 42:
I have always understood that there is a considerable
difference between laws which affect the vested rights and
interests of parties, and those laws which merely affect the
proceedings of Courts; as, for instance, declaring what shall
be deemed good service, what shall be the criterion of the
right to costs, how much costs shall be asked, the manner in
which witnesses shall be paid, or what witnesses the party
shall be entitled to, and so on. For instance, if an act of
parliament were to say that in matters of mere opinion and
judgment, no person shall be allowed to call more than three
witnesses, I think that would apply to all actions, whether
then pending or thereafter to be brought. It would be a
matter regulating the practice; and I think you could not
with any propriety say, "I had the right to call as many
witnesses as I thought necessary to establish my case, and I
wished to have called ten surveyors, ten brokers, ten ship's
husbands, and so on." I do not think that a matter of that
sort can be called a right, nor do I think the title to costs can
be called a right in any sense in which Lord Coke in his
Institutes, or my Lord Chief Justice Truro, in the case
referred to by Mr. Chambers, has spoken of rights. I think
that where an act of parliament alters the proceedings,
which are to obtain in the administration of justice, and
does not specially say that it shall not apply to any action
already brought, but merely causing the operation to pause
for a certain time, and giving an opportunity for parties to
retire from suits, it applies to actions already brought.
We should have thought that, at the very
least, those parts of the new rules that lay down
the procedure for taxing costs are retrospective
in nature and it would seem difficult, in many
cases, to separate the rules for determining
amounts from the procedure. This is particular
ly so where there has been a change from
having the discretion as to amounts vested in
the taxing officer to vesting it in the Court,
which is one of the most important changes
resulting from the substitution of the Federal
Court Rules for the Exchequer Court Rules.
When the matter finally comes to be determined
it may well be that the conclusion of the Associ
ate Chief Justice that the matter is settled by
section 62(6) of the Federal Court Act will be
adopted. It may also be that provisions of the
Interpretation Act, such as sections 35, 36 and
37, will have some bearing on the matter.
In our view the appeal should be dismissed
but, as it was not resisted, without costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.