A-47-78
Federal Business Development Bank (Respond-
ent) (Plaintiff)
v.
The Ship Saturna Maid and Kenneth Kinnaird
(Appellants) (Defendants)
Court of Appeal, Jackett C.J., Urie J. and Kelly
D.J.—Vancouver, March 29, 1979.
Practice — Taxation of costs — Appeal from Trial Divi
sion's confirmation, under Rule 1007(8), of a taxation disal
lowing marshal's bill of costs — Item in dispute computed in
accordance with British Columbia Supreme Court Rules which
allowed a sheriff a percentage of sum realized — Decision to
disallow concerned with issue of marshal receiving fee allowed
sheriff — Only one Court and one class of officer to imple
ment its decisions — Rule 1007(8) only for correction of errors
in taxation — Court's discretionary power exercised pursuant
to s. 9 of Tariff A — Trial Division judgment and the taxation
it dealt with overturned, and matter referred to District
Administrator for re-taxation — Federal Court Rule 1007(8),
Tariff A, ss. 7, 9 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 13(4).
APPEAL.
COUNSEL:
D. E. McEwen for respondent (plaintiff).
T. P. O'Grady, Q.C. for appellants (defend-
ants).
SOLICITORS:
Ray, Wolfe, Connell, Lightbody & Reynolds,
Vancouver, for respondent (plaintiff).
T. P. O'Grady, Q.C., Victoria, for appellants
(defendants).
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division confirming the taxation
of a marshal's bill of costs on a review thereof
under Rule 1007(8).
The only item in dispute is a claim for $4,000
computed in accordance with paragraph 2(c) of
Schedule 2 of Appendix C to the British Columbia
Supreme Court Rules, which allowed to a sheriff
10 per cent of the sum realized in respect of
"Arrest or Execution on Goods and Chattels".
This item was claimed by virtue of Tariff A in the
Federal Court Rules which provides inter alia
under the heading "Sheriff":
7. A sheriff may take and receive for a service rendered by
him the fee or allowance permitted by law for a like service in
the superior court of the province in which the service was
rendered.
The claim was disallowed, as such, by reason of
the decision of the Trial Division in the Xanadu
case (T-3709-73) (August 9, 1974) where Collier
J. expressed the opinion, in effect, that section 7
has no application where a sheriff is claiming in
respect of duties performed by him pursuant to a
Rule in which the duty is expressed to be imposed
on a "marshal". In my view, section 7 applies to a
sheriff when he is claiming in respect of the
performance of duties whether the Rule imposing
the duties refers to him as "sheriff" or "marshal".
Historically, the admiralty jurisdiction of the
Federal Court can be traced back to the High
Court of Admiralty in England in which the offi
cer whose duty it was to carry out decisions of the
Court was known as a "marshal". Otherwise, the
constitution of the Court is patterned on that of
earlier courts in which the Court's decisions were
carried out by officers known as "sheriffs". For
obvious reasons, both terms have been carried into
the Federal Court Act and Rules in a manner that
is somewhat lacking in a logical consistency.
However, by virtue of section 13(4) of the Act,
"Every sheriff of the Court is ex officio a marshal
of the Court ...". In my view, this means quite
simply that "Every sheriff . .. is ... a marshal"'.
In other words, there is only one court and one
class of officer to implement its decisions. Duties
that are, in terms, assigned to a "marshal" are, in
my opinion, in law, assigned to a sheriff. When,
therefore, a sheriff is authorized to "take ... for a
service rendered by him" a certain fee, the author
ity is to take such fee whether the service is
rendered by him under a provision referring to him
as a sheriff or a provision referring to him as a
marshal. I should be sorry to reach any other
' In my view "ex officio" is not an adjective by which the
provision makes a sheriff an "ex officio marshal" but is an
adverb indicating that being a marshal is incidental to being a
sheriff. Compare Black's Law Dictionary where "ex officio" is
defined to mean "... by virtue of the office; without any other
warrant or appointment than that resulting from the holding of
a particular office."
result as I regard section 7 as being of fundamen
tal importance. When different fees are fixed by
provincial authorities for the same class of services
rendered in different provinces, it is to be assumed
that there are reasons therefor and sheriffs should
not be expected to perform such services for the
Federal Court without being paid what they would
be paid if they had performed the services for the
provincial courts.
The question does not arise on this appeal as to
how the sheriff's bill of costs would have been
taxed if section 7 had been applied. Inasmuch as
the taxation proceeded on the basis that section 7
did not apply, in my view, the matter should go
back to the District Administrator for a complete
ly new taxation.
With regard to a taxation where section 7 is
invoked, it should not be overlooked that section 9
provides a safeguard against absurd results. That
section reads:
9. Notwithstanding sections 7 and 8, the fee or allowance or
fee for realization on execution, or "poundage", that may be
taken and received by a sheriff may be increased or decreased
in the discretion of the Court on the application thereto of any
interested party.
However, if there is to be an application under
section 9, it should, I suggest, be made before the
new taxation takes place, as an order made there-
under would be one of the factors on which the
taxation would be based and the purpose of the
review under Rule 1007(8) is to correct errors in
the taxation and not to afford an opportunity to a
party to seek to have the Court exercise its discre
tionary powers 2.
I am, therefore, of opinion that the appeal
should be allowed, that the judgment of the Trial
Division and the taxation of the sheriff's costs that
is the subject thereof should be set aside and that
the matter should be referred back to the District
Administrator for re-taxation of the sheriff's
account.
* * *
URIE J. concurred.
* * *
KELLY D.J. concurred.
2 Cf Smerchanski v. M.N.R. [1979] 1 F.C. 801.
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.