T-2824-72
Weight Watchers International Inc. (Plaintiff)
v.
Morray Burns, Adelaide Daniels, Harold Daniels,
Bernard C. Kurtz, Sam Kwinter, Weight Watch
ers of Ontario Limited, Adelaide Daniels Enter
prises Limited, Counterweight Limited, Weight
Watchers (Atlantic) Limited, Weight Watchers of
New Brunswick Limited, Weight Watchers of
Newfoundland Limited, Canadian Association of
Organizations for Weight Watchers, Bernard C.
Kurtz Limited, Weight Wise Limited (Defend-
ants)
Trial Division, Kerr J.—Ottawa, August 19 and
28, 1975.
Practice—Application for charging order on defendant's
costs—"Gap" rule—Analogy to Ontario Rules of Practice—
Federal Court Rules 5, 1900—Ontario Rules of Practice and
Procedure 696.
Defendant's solicitor applied for a charging order on costs
awarded to defendant Burns for his unpaid expenses. The
whereabouts of Burns appears unknown.
Held, granting the order, in absence of a specific rule of this
Court, under Rule 5, analogy may be made to Rule 696 of the
Ontario Rules of Practice. Taxable costs ordered to be paid by
plaintiff to defendant Burns are "property recovered or pre
served through the instrumentality of a solicitor" within the
meaning of Rule 696.
Doyle v. Doyle (1975) 4 O.R. (2d) 111, agreed with.
APPLICATION.
COUNSEL:
K. Plumley for plaintiff.
W. F. Green for defendant Burns.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiff.
W. F. Green, Toronto, for defendant Burns.
The following are the reasons for judgment
rendered in English by
KERR J.: The notice of motion reads as follows:
TAKE NOTICE that an application will be made by Weldon F.
Green before the Honourable Court at the Court House in the
City of Toronto, on Monday, the 14th of April, 1975, at 11:00
o'clock, in the forenoon or so soon thereafter as the application
may be heard for an Order pursuant to Rule 5 of the General
Rules and Order of this Honourable Court and Rule 696 of the
Supreme Court of Ontario for a Declaration that the said
Weldon F. Green, the Solicitor for the defendant, Morray
Burns is entitled to a charge upon the taxable costs awarded to
said defendant by this Honourable Court in the above Order of
Mr. Justice Kerr, for said Solicitor costs, charges, expenses of
or in reference to the action and applications referred to therein
when he was employed by said defendant, Morray Burns, as his
Solicitor, to defend such action and applications; and that the
costs of this application be taxed as between Solicitor and client
and added to the amount for which said charge is granted; or
for such further order as may seem just;
This application was heard along with an
application by the plaintiff for an order to vary my
order of October 11, 1973, so as to provide that no
costs shall be payable by the plaintiff to the
defendant Morray Burns. I dismissed the plain
tiffs said application this day, and my reasons and
order are of record. Therefore, as of now, my order
of October 11, 1973, remains without variation,
and this decision is being made on that basis.
Mr. Green seeks to charge the said October 11,
1973, order for payment of costs for his costs,
charges and expenses to the extent that they
remain unpaid, and for the power to enforce such
charge by way of taxation of the bill of costs and
execution or in such other manner as the Court
may direct.
It has been made to appear that the present
whereabouts of the defendant Morray Burns are
unknown to Mr. Green, and it is thought that he is
in the United States. Substituted service of the
notice of motion was authorized by Mr. Justice
Collier.
At the hearing counsel referred to Rule 1900(1)
and (3) of the Federal Court Rules, the relevant
portions of which read:
Rule 1900. (1) Subject to the provisions of these Rules, a
judgment or order for the payment of money, not being a
judgment or order for the payment of money into court, may be
enforced by one or more of the following means, that is to say,
(e) a charging order,
(3) Paragraphs (1) and (2) are without prejudice to any
other remedy available to enforce such a judgment or order as
is therein mentioned or as is provided by section 56 of the Act.
Section 56(1) of the Federal Court Act is as
follows:
56. (1) In addition to any writs of execution or other process
that are prescribed by the Rules for enforcement of its judg
ments or orders, the Court may issue process against the person
or the property of any party, of the same tenor and effect as
those that may be issued out of any of the superior courts of the
province in which any judgment or order is to be executed; and
where, by the law of that province, an order of a judge is
required for the issue of any process, a judge of the Court may
make a similar order, as regards like process to issue out of the
Court.
It does not appear that there is any Rule of this
Court that expressly provides for a charging order
of the kind now sought.
There is, however, Rule 5 of the Federal Court
Rules, reading as follows:
Rule 5. In any proceeding in the Court where any matter
arises not otherwise provided for by any provision in any Act of
the Parliament of Canada or by any general rule or order of the
Court (except this rule), the practice and procedure shall be
determined by the Court (either on a preliminary motion for
directions, or after the event if no such motion has been made)
for the particular matter by analogy
(a) to the other provisions of these Rules, or
(b) to the practice and procedure in force for similar pro
ceedings in the courts of that province to which the subject
matter of the proceedings most particularly relates,
whichever is, in the opinion of the Court, most appropriate in
the circumstances.
Rule 696 of the Rules of Practice and Procedure
of the Supreme Court of Ontario is as follows:
696. (1) Where a solicitor has been employed to prosecute
or defend any cause or matter, the court may, upon a summary
application, declare such solicitor, or his personal representa
tives, to be entitled to a charge upon the property recovered or
preserved through the instrumentality of such solicitor, for his
costs, charges and expenses of or in reference to such cause,
matter or proceeding, and all conveyances and acts done to
defeat, or which may operate to defeat, such charge or right
are, unless made to a bona fide purchaser for, value without
notice, absolutely void and of no effect as against such charge.
(2) The court may make an order for taxation of such costs,
charges and expenses and for the raising and payment of the
same out of the property.
No decision of this Court dealing directly with
the matter has been drawn to my attention.
Mr. Plumley, counsel for the plaintiff, opposed
the motion, submitting mainly that the Court lacks
jurisdiction to make the charging order, that sec
tion 56 of the Federal Court Act and the Court's
Rule 1900 and the Ontario Supreme Court's Rule
696 are not applicable, that the exercise of the
power to make a charging order is discretionary
and is not exercised unless there are funds in Court
or property recovered or preserved through the
endeavours of the solicitor and that it is in the
nature of a salvage order; and that the right of
Morray Burns to tax his costs is not "property
recovered or preserved" through the instrumental
ity of a solicitor. Mr. Plumley cited the following
cases: Dales v. Byrne (1916) 35 O.L.R. 495 at
500; Scholey v. Peck, re Metcalfe and Sharpe
(1893) 68 L.T. 118 cited in Re L & D Cartage &
Development Co. Ltd. v. Sterling Construction Co.
Ltd. [1963] 2 O.R. 420; Re: Bulmor (1926) 30
O.W.N. 71; Homstead & Gale, Vol. 3, Rule 696,
pp. 2565-2570.
Mr. Green cited a decision of O'Leary J., in the
High Court of Justice of Ontario, Doyle v. Doyle',
from which I quote the following extracts:
While the power of the Court under Rule 696 is a discretion
ary power, prima facie, a solicitor is entitled to a charging
order as security in respect of the fruit of his labour, for as was
stated by Middleton, J.A., in Conklin v. Milhousen (1928) 33
O.W.N. 351, "while the costs are technically awarded to the
litigant, they are earned by the solicitor".
The substantial questions for my determination on this
application are:
(a) Whether a judgment for costs is "property recovered
through the instrumentality of the solicitor" such as to entitle
the solicitor to a charge under Rule 696, upon the said
judgment for his costs in reference to the action out of which
the judgment arose.....
It appears from Nevills v. Ballard [(1898), 18 P.R. (Ont.)
134], and such decisions as Faithful v. Ewen (1878), 7 Ch. D.
495, and Cole v. Eley [1894] 2 Q.B. 350, that a judgment debt
is considered "property recovered" within the meaning of Rule
696.
Accordingly, I conclude that a judgment for costs is property
recovered through the instrumentality of the solicitor.
(1975) 4 O.R. (2d) 111 at 114, 115.
In my opinion the matter should be dealt with
by this Court by analogy to the practice and
procedure in the Supreme Court of Ontario, par
ticularly its Rule 696.
I also think that the taxable costs ordered to be
paid by the plaintiff to the defendant Morray
Burns by my order of October 11, 1973, are
"property recovered or preserved through the
instrumentality" of Mr. Green, within the meaning
of the said Rule 696.
Therefore, an order will go declaring that Mr.
Green is entitled to a chargè upon the taxed costs
awarded to the defendant Morray Burns by this
Court in its order of October 11, 1973, for Mr.
Green's costs, charges and expenses, to the extent
that they remain unpaid, of or in reference to the
action and applications referred to therein when he
was employed by the said Morray Burns, as his
solicitor, to defend such action and applications;
and ordèring that the plaintiff shall pay Mr.
Green's costs of this application, to be taxed on a
party and party basis, unless agreed as to amount,
and that they shall be added to the other taxable
costs to which the charge applies.
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.