David Gerald Crabbe (Appellant)
v.
The Honourable Donald C. Jamieson, Minister of
Transport (Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Ottawa, November 30, 1973.
Practice—Costs—Taxation—Discretion of Court to sub
stitute lump sum after judgment—Federal Court Rules 334,
337(5)(6), 344, 346.
APPLICATION under Rule 324 of Federal
Court Rules.
SOLICITORS:
Langlois, Drouin and Laflamme, Quebec,
for appellant.
Deputy Attorney General of Canada for
respondent.
The judgment of the Court was delivered by
JACKETT C.J.—This is an application made
pursuant to Rule 324 to fix the costs awarded
by the judgment of the Court pronounced on
June 9, 1972. That judgment ordered payment
of the appellant's costs of the appeal "when
taxed".
The fact that such an application has been
made suggests the need for some exposition of
the scheme of the Rules regarding awards of
costs.
In the first place, the limits within which the
Court can vary its own judgment by substituting
an award of a lump sum for costs for the award
of costs to be taxed are very narrow. A judg
ment must always be in the form of a separate
document signed by the presiding judge (Rule
337(2)(a) and (3)) or, in the case of an interlocu
tory judgment, endorsed by the judge on some
other document. Such a judgment is final (Rule
337(4)) except that
(a) its terms may be reconsidered on the
ground that they do not accord with the rea
sons or that there has been an accidental
omission (Rule 337(5)), and
(b) clerical mistakes and accidental slips, etc.,
may be corrected (Rule 337(6)).
There are three ways in which the Court takes
action in respect of costs:
(a) an award of costs in a judgment disposing
of a proceeding,
(b) a direction or order of the Court as to
what is or is not to be allowed in the taxation
of costs where costs are to be taxed, and
(c) a decision on an "appeal" from a taxation
of costs by a taxing officer.
First, with reference to an award of costs.
Rule 334(1) provides that costs of all "pro-
ceedings" are in the discretion of the Court and
"unless otherwise ordered" follow the event.
This means that, where there is a judgment
disposing of a proceeding, that judgment,
whether it is interlocutory or final, must
expressly or impliedly decide what costs, if any,
are to be paid in respect of the proceeding
because, if the judgment does not expressly deal
with costs, the result of that judgment is that
costs "follow the event". If the Court, by its
judgment, deals expressly with costs, it may
award a "lump sum" or it may award "taxed
costs" (last sentence of Rule 344(1)) and, in
either event, it must take into account the direc
tions given by Rule 344(3) for exercising its
discretion.
Secondly, with reference to directions or
orders of the Court as to what may be taxed by
the taxing officer.
In addition to the discretion of the Court as to
what the judgment shall say as to costs (i.e.,
lump sum or costs to be taxed as to all or part
only of expenses incurred), the Court has an
authority to give directions that are to be taken
into account by the taxing master in taxing
costs. Rule 344(4), read with Rule 344(5), pro
vides for directions that "no costs be allowed"
in certain respects. Tariff B, paragraph 3, con
templates a direction altering the amounts that
may otherwise be allowed under the Tariff. Rule
346 lays down rules governing taxation of costs
that apply unless the Court otherwise orders.
Such special directions or orders might be made
at any appropriate time during the proceedings
or as contemplated by Rule 344(7).
This view of the role of the Court is con
firmed by Rule 346(1), which reads as follows:
Rule 346. (1) All costs between party and party shall be as
determined by, or pursuant to, the Court's judgment and
directions and, subject thereto, Tariff B in the Appendix to
these Rules and this Rule are applicable to the taxation of
party and party costs.
Finally, it is to be noted that the so-called
appeal from a taxation is to be found in Rule
346(2), which provides that costs are to be
taxed by a taxing officer "subject to review by
the Court upon the application of any party
dissatisfied with such a taxation". It is obvious
that, on such a review, the Court decides wheth
er the taxing officer erred in performing his
duty and on such a proceeding it can neither
change the Court's judgment or direction nor
make a direction or order contemplated by Rule
344(4) or paragraph 3 of Tariff B.
In the present case since the judgment was
pronounced in open court the matter of award
ing a fixed amount in lieu of costs to be taxed
might have been spoken to before the judgment
was pronounced or it might have been raised on
an application under Rule 344(7), within the
time limited by Rule 337(5), to reconsider the
pronouncement on any ground falling within
Rules 337(5) and 337(6), that is to say, on the
ground (1) (Rule 337(5)) that the terms of the
judgment did not accord with the reasons of the
Court or that there had been an accidental omis
sion or (2) (Rule 337(6)) that there had been a
clerical or accidental slip which required correc
tion. However, no order for payment of a fixed
amount in lieu of taxed costs was obtained or
included in the judgment as pronounced and the
material put before the Court on this application
discloses no ground of the kind referred to in
either Rule 337(5) or Rule 337(6). The only
reason that the material does suggest for vary
ing the judgment is that the appellant considers
that what he could tax under the applicable
tariff would not be sufficient but, if that is the
case, there was procedure under Rule 344(7)
and paragraph 3 of Tariff B by which the
adequacy of the tariff amounts might have been
questioned and a direction varying them might
have been obtained had an application been
made within the time prescribed.
It is perhaps not amiss to note as well that the
material before the Court discloses no reason
why the present application should be enter
tained out of time or so long after the time
prescribed by Rules 344(7) and 337(5) for an
application to vary the judgment expired.
The application accordingly fails.
The question of the applicable tariff was also
raised and argued in the submissions of counsel
on the application but, in view of the foregoing,
it is not necessary to decide the point. However,
without doing so but in the hope of expediting
the matter to a conclusion, it may be suggested
that it seems clear enough on reading subpara-
graph (3) of paragraph 1 of Tariff A that the
appeal does not fall within clauses (a), (b) or (c)
thereof but falls within clause (d) and that the
proceeding was accordingly a Class III step.
The application should be dismissed 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.