A-264-78
Bensol Customs Brokers Limited, D. H. Gros-
venor Incorporated, Neuchatel Swiss General In
surance Company Limited (Plaintiffs)
v.
Air Canada (Defendant)
Court of Appeal, Jackett C.J., Heald and Ryan
JJ.—Ottawa, September 20, 1979.
Practice — Application to review taxation of costs of appeal
to Court of Appeal from Trial Division — Paragraph 2(I)(d)
and (e) of Tariff B applies to the preparation for and conduct
of the "hearing" of an appeal, whether the appeal is from a
final or interlocutory judgment of the Trial Division, but does
not apply to an interlocutory or other application in the Court
of Appeal — Taxation to be set aside and referred back to the
Taxing Master for re-taxation on basis that costs being taxed
are costs of appeal and not of an interlocutory application —
Federal Court Rules 324, 346(2), Tariff B, s. 2(1)(d),(e).
APPLICATION in writing under Rule 324.
COUNSEL:
Gerald P. Barry for plaintiffs.
Jean E. Clerk for defendant.
SOLICITORS:
McMaster, Meighen, Montreal, for plaintiffs.
Giard, Gagnon, Clerk & Perron, Montreal,
for defendant.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a Rule 324 application in
writing under Rule 346(2) to review a taxation of
costs in this Court (the Court of Appeal) awarded
by a judgment of this Court [[1979] 2 F.C. 575]
reversing a judgment of the Trial Division [[1979]
1 F.C. 167] which, determining a question of law,
held that the appellants' action for damages had to
be dismissed for lack of jurisdiction.
From the Taxing Officer's Report and the sub
missions of the parties, it would appear that the
question of substance raised by this application
arises out of what I said in reasons delivered on
December 5, 1977, in Smerchanski v. M.N.R.
(unreported, A-53-72), the relevant part of which
is as follows:
This is an application to review the taxation of costs allowed
upon the dismissal of a motion to fix the costs which had been
awarded upon the dismissal of certain tax appeals....
On the taxation of the costs awarded on the interlocutory
motion, the taxing officer allowed $350 for preparation for
hearing and $400 for conduct of hearing under paragraph
2(1)(d) and (e) of Tariff B to the Rules. In our view, these
items refer to preparation for, and conduct of, the "hearing" of
the appeal, section 28 application or other substantive matter
that was before the Court and not to a "hearing" of an
interlocutory or other incidental application. In our view, the
fee provided for by paragraph 2(1)(c) covers preparation for,
and conduct of, a "hearing" in such an interlocutory or inciden
tal application.
What I failed to make clear in that case was
that paragraph 2(1) (d) and (e) of Tariff B applies
to preparation for, and conduct of, the "hearing"
of an appeal, whether the appeal is from a final or
interlocutory judgment of the Trial Division, but
do not apply to an interlocutory or other applica
tion in the Court of Appeal. In that case the costs
in question were costs of an interlocutory applica
tion in the Court of Appeal. The costs in question
here are costs of an appeal to the Court of Appeal
from the Trial Division. (While it would not
appear to be relevant, that appeal was, in my view,
an appeal from a final judgment.)
I am of opinion that the taxation should be set
aside and the matter should be referred back to the
Taxing Master for re-taxation on the basis that the
costs being taxed are costs of an appeal and not
costs of an interlocutory application and that the
applicant should have the costs of this application,
which is an interlocutory application.
* * *
HEALD J. concurred.
* * *
RYAN J. concurred.
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.