T-358-75, A-27-77
Manitoba Fisheries Limited (Applicant) (Plain-
tiff-Appellant)
v.
The Queen (Respondent) (Defendant-Respond
ent)
Trial Division, Smith D.J.—Winnipeg, March 7
and June 2, 1979.
Practice — Taxation — Application for increase in Tariff B
on taxation of costs and for order extending time for bringing
of application — Applicant argued that increase warranted
because (1) the case was novel in Anglo-Canadian law, (2) the
case was a test case, (3) the complexity of the legal and factual
issues and (4) the magnitude of the money involved — Federal
Court Rules 337(5), 344(7), 346, Tariff B.
This is an application by the plaintiff-appellant, following the
Supreme Court of Canada's reversal of the judgment in this
cause given by the Trial Division and affirmed in the Court of
Appeal, for an order directing an increase in Tariff B on the
taxation of costs in both the Trial Division and the Court of
Appeal, and for an order extending the time for bringing this
application. Applicant submitted four points in argument for
fees in excess of those provided in Tariff B: (1) the novelty of
the claim in Anglo-Canadian law, (2) the test nature of the
case, (3) the complexity of the legal and factual issues in the
case, and (4) the great magnitude of money involved in the
claim for damages.
Held, the application is allowed. This is a proper case in
which to extend the time for bringing this motion. The issues
were complex and at times novel; the proceedings were pro
tracted; no submissions were received that respondent suffered
or would suffer by the delay. The rule that application to
increase the applicant's allowable costs be made while the
matter is still fresh in the mind of the Court is a guide to be
generally followed, but not one to be applied to negate the
applicant's right to bring this motion, since to do so would be to
punish him for a delay which it was impossible for him to avoid.
Applicant is entitled to tax higher costs than provided in Tariff
B, Class III, because of the test nature of the case and the
greatly increased responsibility and work resulting from it. The
engagement of two extra counsel, who acted for the seven other
companies, is not a luxury but a prudent, well warranted step
made necessary by the need for the closest possible cooperation
between applicant and the other companies. The Court, how
ever, was not provided with enough information to support a
conclusion that this element was important enough to warrant
an increase in party and party costs. The Court cannot accept
counsel's submission as to the novelty of the case—that the
words "residual value" recognized the fact that the value of
applicant's boats, fishing gear and tools was depreciated for
want of an available market on the taking of its business. The
other grounds submitted as justifying an increase in costs are
precluded by the Smerchanski case.
Aladdin Industries Inc. v. Canadian Thermos Products
Ltd. [1973] F.C. 942, considered. Smerchanski v. Minister
of National Revenue [1979] 1 F.C. 801, considered. Hills-
dale Golf & Country Club Inc. v. The Queen [1979] 1
F.C. 809, considered.
APPLICATION.
COUNSEL:
K. M. Arenson for applicant (plaintiff-appel
lant).
L. P. Chambers for respondent (defendant-
respondent).
SOLICITORS:
Arenson & Allen, Winnipeg, for applicant
(plaintiff-appellant) .
Deputy Attorney General of Canada for
respondent (defendant-respondent).
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is an application by the plain-
tiff-appellant, following the reversal by the
Supreme Court of Canada [[1979] 1 S.C.R. 101]
of the judgment of the Trial Division [[1977] 2
F.C. 457] in this cause and its affirmation by the
Federal Court of Appeal [[1978] 1 F.C. 485], for
an order directing an increase in Tariff B on the
taxation of costs in both the Trial Division and the
Court of Appeal, and for an order extending the
time for bringing this application. The motion was
heard by me on March 7, 1979.
I deal first with the application for an order
extending the time for bringing this motion.
The Supreme Court judgment was pronounced
on October 3, 1978. Until that date the applicant
(plaintiff-appellant) had no right to any costs or to
tax any costs against the respondent (defendant-
respondent). The notice of motion in the present
application was filed on February 21, 1979. This
was long after the specific period of 10 days
following pronouncement allowed by Rule 337(5)
to move the Court to reconsider the terms of the
pronouncement, but that subsection authorizes
such a motion to be made within "such further
time as the Court may allow." Rule 344(7) pro-
vides that "within the time allowed by Rule 337(5)
to move the Court to reconsider the pronounce
ment" any party may "move the Court to make
any special direction concerning costs contemplat
ed by this Rule, including any direction contem
plated by Tariff B, and to decide any question as
to the application of any of the provisions in Rule
346." Section 3 of Tariff B provides:
3. No amounts other than those set out above [in section 2]
shall be allowed on a party and party taxation, but any of the
above amounts may be increased or decreased by direction of
the Court in the judgment for costs or under Rule 344(7).
In my view, the foregoing provisions of Rules
337(5) and 344(7) and section 3 of Tariff B
authorize the bringing of the present motion, sub
ject to the decision of the Court on the question of
time. Having in mind the protracted proceedings
in three Courts in this case, that the judgment of
Collier J., in the Trial Division, dismissing the
action, was pronounced on December 22, 1976,
that the Supreme Court judgment reversing that
judgment along with the similar judgment of the
Court of Appeal was pronounced more than 21
months later, that the issues in the case were
complex and one or more of them novel, and that
no submission has been made that the respondent
has suffered or will suffer prejudice by the delay,
in my opinion this is a proper case in which to
extend the time for bringing this motion to the day
set for hearing the motion, March 7, 1979. I so
order.
Counsel for the applicant filed two affidavits
taken by Marcia Elizabeth Matwick, legal secre
tary, one relating to the costs of the applicant for
legal services in the Trial Division down to and
including the trial and judgment, and consider
ation of the merits of an appeal from the judgment
of the Trial Division. The other related to the costs
of the applicant for legal services in connection
with the appeal to the Federal Court of Appeal.
Attached to each affidavit is a draft bill of the
costs incurred or rather of the services performed
in connection with proceedings in the respective
Courts. Each of these draft bills is drawn in gener
al terms, with total time figures for services per
formed in connection with the several steps in the
proceedings. Neither bill contains a money figure
for any of the services rendered, nor is there any
reference to disbursements, except in so far as
disbursements may be inferred from the references
in each bill to other counsel being involved in the
proceedings. It appears that once the fees of solici
tors and counsel have been determined any prob
lems about disbursements that remain will be
resolved by the taxing officer or by agreement.
The Trial Division bill contains one item for
settling, with one counsel, the statement of claim,
a number of items for numerous consultations with
other counsel, and specific items for counsel fees
for two other counsel at the pre-trial conference,
which lasted one-half day and at the trial, which
lasted 3 days. The item for the examination for
discovery does not indicate that other counsel were
present. It lasted one day. The Court of Appeal
bill discloses that other counsel were involved
throughout the appeal and contains a specific item
for second and third counsel at the appeal hearing,
which lasted 2 days. From the submission of coun
sel for the applicant it is clear that 2 other counsel
were engaged with him at various points in the
proceedings in both Courts, and that he will have
to settle with them what their respective shares are
of the total counsel fees received by him, whether
indirectly from the Crown as a result of the taxa
tion of his bills, or otherwise from his client.
Counsel for the applicant suggested that the
Court might award an overall lump sum for legal
services in the two Courts. His proposal may be
stated shortly, as follows. The action brought by
his client was a test case, which would determine
the rights of seven other fishing companies which
were in the same position. Counsel calculated,
assuming that all items in the bill were taxable,
that the total taxable amount for fees under Tariff
B, Class III in his client's case was $1,900 in the
Trial Division and $1,750 in the Court of Appeal,
making an overall taxable total of $3,650. If all of
the eight companies had pursued their actions
individually, instead of by way of one test case,
there would have been eight trials and eight
appeals, and the taxable costs in the eight cases
might have been eight times as large as for one,
viz.: $29,200. The two bills of costs indicate the
total time required of solicitor and counsel, allow
ing 5 hours for each full day in court and for
pre-trial conference and examination for discovery,
was 497 1 / 2 hours, or an average of a little more
than $58 per hour.
On this basis counsel submitted that $29,200
was an appropriate global figure to allow for legal
costs, this amount to include the amounts counsel
would have to pay the other two counsel who were
associated with him in the proceedings in both
Courts.
The proposal is ingenious but not realistic. In
the first place counsel for the respondent objected
to the allowance of a global figure arrived at in
this way. The consent of the respondent is neces
sary, as is that of the Court, for the fixing of a
global figure for costs where the judgment simply
awards costs, which will normally be taxed. I agree
with at least one other of his objections, namely:
that if the applicant's case had not been treated as
a test case, the other seven would not have con
tinued to trial and appeal. At some early stage,
proceedings in those seven cases would have been
suspended pending the outcome of the applicant's
case. If not, very substantial costs and time of the
Court would have been incurred unnecessarily.
Secondly, there is no logic in fixing the solicitor
and counsel fees in a test case on the basis that
those fees will be based on the fees provided by
Tariff B multiplied by the number of cases to
which the decision in the test case will apply. On
such a basis, if the test decision will apply to one
other case, the fees would be twice those in Tariff
B, but if it will apply to twenty other cases, the
fees allowed in the test case would be twenty-one
times those in Tariff B. This would be an absurd
result, since the responsibility, effort, work and
time involved would be the same, or practically so,
in both situations. The application for a global
figure to be set is rejected.
The Supreme Court judgment, on the matter of
costs, merely said: "The appellant is entitled to its
costs throughout." There being no mention of
solicitor and client costs, we are here concerned
with party and party costs, and the applicant
counsel's "global figure" therefore represents his
view of the portion that might be appropriate for
the Court to order the respondent to pay, of the
applicant's costs in the Trial Division and Federal
Court of Appeal.
Counsel for the applicant submitted four points
in argument for fees in excess of those provided in
Tariff B.
1. The novelty of the claim in Anglo-Canadian law. Counsel
stated that this was the first case in which it had been held that
the concept of injurious affection applied to chattels, e.g.: boats,
knives, nets, and was not limited to real property. Further, the
Supreme Court held that where a statute which did not
expressly provide for the taking away of the property and
business of persons or corporations and the vesting of those
assets in the Crown or a Crown agency, enacted that persons
who had previously sold goods, in this case fish, to privately
owned and operated companies, could no longer do so but must
sell their fish to the Freshwater Fish Marketing Board (a
Crown corporation established under the statute), there was an
effective "taking" of all the property, business and good will of
those companies, since under the statute there was no one from
whom they could buy fish and the purchasing, processing and
selling of fish was the sole purpose of their existence.
2. The test nature of the case. There were seven other compa
nies in the same position as the Applicant (Plaintiff-Appellant),
all of whom had commenced similar actions. As the rights of
those seven companies would be determined by the decision in
the Applicant's (Plaintiff's) case, counsel submitted that it was
necessary to keep in close touch with counsel for those compa
nies throughout all the proceedings in the Plaintiffs case, and
that this need in itself justified the engagement of two other
counsel in the Plaintiff's case, if only to make sure that the
rights of those companies were fully protected by seeing that
the opinions and advice of their counsel were always available
and taken into consideration.
3. The complexity of the legal and factual issues in the case.
Counsel cited as an example of complexity the facts and legal
points that had to be dealt with on the fundamental question of
the taking of good will, on which, in the final result, the
Supreme Court disagreed with the courts below. He submitted
that this issue involved protracted negotiations, inter alia to
make sure that the Statement of Facts which both sides desired
to reach agreement upon, and ultimately did agree upon, would
contain all the facts relevant to the determination of all ques
tions related to good will.
4. The great magnitude of money involved in the claim for
damages. In its Statement of Claim the Plaintiff claimed the
value of its business as a going concern, including property
rendered valueless by the taking, the whole estimated value
being $450,000, with interest from the coming into force of the
Freshwater Fish Marketing Act in 1969 to the commencement
of the action in 1975. Including interest the claim at the latter
date was well in excess of half a million dollars. The claims of
the other companies were for various amounts, some smaller,
some larger than that of the Plaintiff. In total the amount
claimed in the 8 actions was several million dollars.
So far as this fourth ground on which fees in
excess of those allowed under Tariff B are being
sought in this motion I need only say that the
amount of money at stake is not in itself justifica
tion for increasing fees above those normally
allowed. The law on this point is well settled.
Counsel for the respondent (defendant-respond
ent), in opening his argument, referred to Court
Rule 346, the relevant portion of which reads:
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.
(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.
His submission on this Rule was that the costs
in this case at both levels of the Federal Court
must be taxed under Tariff B, subject to any
increase allowed by the Court, and that the cir
cumstances in this case were not such, under the
jurisprudence, as to warrant the allowance of
higher costs than those contained in Tariff B. In
support of this submission he cited the following
cases:
1. Aladdin Industries Incorporated v. Canadian
Thermos Products Limited [1973] F.C. 942. In
this case Kerr J. was dealing with an application to
review the costs of the successful defendant as
taxed under Tariff B by the prothonotary, incurred
in protracted and extremely complex proceedings
brought by the plaintiff to expunge the defendant's
trade mark. Kerr J. had heard and dismissed the
plaintiff's application to expunge and was well
informed on all the facts relevant to taxation. In
the present case I am not in the same position, as
my only contact with it was to hear, at an early
stage in the action, an application by the defend
ant to strike out the plaintiff's statement of claim.
In Aladdin v. Thermos the bill of costs, as
drawn, totalled $78,711.08 and had been taxed
and allowed at $9,386.93. On the review applica
tion Kerr J. said, at page 945:
I am convinced that some of the amounts in Tariff B are
inadequate to do justice costwise to Thermos in the circum
stances of this case, having regard particularly to the great
volume of work done in preparation for the trial, and I am
mindful of what was said by Collins, M.R., in Re Coles and
Ravenshear [1907] 1 K.B. 1 at page 4 as follows:
Although I agree that a Court cannot conduct its business
without a code of procedure, I think that the relation of rules
of practice to the work of justice is intended to be that of
handmaid rather than mistress, and the Court ought not to
be so far bound and tied by rules, which are after all only
intended as general rules of procedure, as to be compelled to
do what will cause injustice in the particular case.
On the basis of the foregoing quotation Kerr J.
increased the amounts which had been allowed on
taxation for some of the items in the bill of costs.
The increases allowed in fees were almost entirely
because of the immense amount of work involved
prior to and in preparation for (1) examination for
discovery, (2) cross-examination of various persons
on their affidavits and (3) the hearing on the
application to expunge. No increase above the
amounts contained in Tariff B, for Class III was
allowed for attendance on cross-examination on
affidavits or the motion to expunge, which last
mentioned proceeding lasted 18 full days. Nor was
anything above the amount provided for in Tariff
B allowed for drafting the bill of costs and taxing
it. The learned Judge also allowed disbursements
in the amount of $3,170.25, that the prothonotary
had considered to be not taxable. In the result the
taxed costs were increased from $9,386.93 to
$18,732.18.
It was the great complexity of the facts in
Aladdin v. Thermos that led to Kerr J. allowing
increases in the fees for certain items of the bill of
costs. Counsel for the defendant submitted that no
such degree of complexity existed in the present
case. I agree that the complexities in this case were
less than in Aladdin v. Thermos. Nevertheless the
case was quite complex. From the bill of costs it
appears that, apart from the pre-trial conference,
examination for discovery and trial, which to
gether took 4' days, some 390 hours of solicitor
and counsel time were required in preparation for
and handling the case in the Trial Division. Most
of those 390 hours related to two items. The first
of these items was research of facts and law in
December 1974 and January 1975 and required
163 hours of work. The second item was work in
connection with obtaining an agreed statement of
facts and two further statements admitting addi
tional facts. This item involved lengthy negotia
tions with Crown counsel, spread over five or six
months in 1975 and from January to March in
1976. The total time required for this item, as
detailed in the bill of costs, adds up to 93 hours.
The time required for these two items is thus
stated to have been 256 hours. Together with other
items totalling 65 hours (not including one-half
day attending a pre-trial conference) they com
prise the work done and time required for services
under section 2(1)(a) of Tariff B, which provides,
for Class III cases, of which this is one, a fee of
$100. Assuming that the total time required for
these services, 321 hours (256 plus 65) is reason
ably justifiable, that great amount of time is a
strong indication that the case was one of unusual
complexity.
The bill of costs for the appeal to the Federal
Court of Appeal shows that services of solicitor
and counsel before and after the appeal hearing
required 75 hours of work and that in addition the
appeal hearing lasted two days. Here again, if the
time periods are reasonably justifiable they sug-
gest that at least some of the legal points dealt
with were complex and difficult.
2. Smerchanski v. M.N.R. [1979] 1 F.C. 801.
This was a motion respecting party and party
costs, heard by Jackett C.J., sitting alone, in the
Federal Court of Appeal. The Chief Justice said,
at pages 805-806, with reference to a direction
being made by the Court to increase fees of solici
tors and counsel:
Such a direction must be based on relevant considerations and
must not be made on an arbitrary basis. All that has been
established here is that the respondent incurred a very large
solicitor and client bill in connection with the appeal, which
would have been relevant if costs had been awarded on a
solicitor and client basis but is not ordinarily relevant to the
determination of costs on a party and party basis. Nothing has
been put forward to suggest that there was anything in the
conduct of the appeal to warrant any increase in the party and
party tariff. While there is no principle with reference to the
basis for ordinary party and party costs that is apparent to me
from a study of the relevant Rules, it does seem to be clear that
party and party costs are not designed to constitute full com
pensation to the successful party for his solicitor and client
costs.
And again, at page 806:
Reference was made to some four or five decisions of the
Trial Division where Tariff B items were increased apparently
"having regard particularly to the great volume of work done in
preparation ...". I have difficulty in accepting volume of work
in preparation considered alone, or in conjunction with such
factors as the difficulty or importance of the case, as constitut
ing a basis for exercising the judicial discretion to increase
Tariff B costs items. ... If Federal Court party and party costs
are not designed to provide full reimbursement, as it seems to
me, what is intended is that they be made up of the completely
arbitrary amounts fixed by or in accordance with the rules
subject to variations (where authorized) based on factors aris
ing out of the conduct of the particular proceeding. As it seems
to me, the vague basis put forward on behalf of the respondent
would put the Court in the position, in a very substantial
proportion of proceedings, of weighing imponderable factors, or
factors that are not capable of determination, with a view to
making an allowance of an undefined portion of solicitor and
client costs. In my view, such an approach is not acceptable as a
basis for exercising a judicial discretion under Tariff B and
would open the way for an unseemly complication of our
practice.
The judgment in the Smerchanski case, from
which extracts have been quoted supra renders
doubtful the jurisprudential value of some of the
earlier decisions (including Thermos) on increas
ing party and party costs.
3. Hillsdale Golf & Country Club Inc. v. The
Queen [ 1979] 1 F.C. 809. This is a decision of
Walsh J. dated December 22, 1978. It was a
petition for directions concerning costs or for an
order prescribing the payment of a global sum in
place of costs. Walsh J. reviewed the jurisprudence
dealing with the procedure where party and party
costs above those contained in Tariff B are being
sought and also the quantum to be allowed. In
particular he considered the judgment of Jackett
C.J. in the Smerchanski case, supra, and
expressed the view that that decision, together
with that of the Federal Court of Appeal in
Crabbe v. Minister of Transport [1973] F.C. 1091
must be considered as a definitive finding on the
question of procedure and quantum. I agree with
that opinion. He then set out in eight numbered
paragraphs his understanding of the present state
of the law following the Smerchanski judgment.
Some of these paragraphs are directly relevant to
the present application.
Paragraph 1 reads:
1. If the Court in rendering judgment merely gives judgments
for costs to be taxed it cannot subsequently substitute a lump
sum unless by way of reconsideration of the judgment for a
reason that falls within one of the classes of a case to be found
in Rule 337(5) or (6).
The present application does not ask for recon
sideration of the judgment for a reason falling
within one of the classes in Rule 337(5) or (6). It
merely asks for an order increasing the costs in
Tariff B.
Paragraph 2 reads:
2. In dealing with the subsequent taxation of costs pursuant to
section 3 of Tariff B and Rules 344(7) and 350(3) Jackett C.J.
states at page 803:
In my view this cannot change the nature of the order that
may be sought as set out in the notice of motion without the
acquiescence of the opposing party and the Court and it
cannot be said that there was any acquiescence on the part of
the opposing party during the hearing of this application.
The present application does not seek to change
the nature of the order asked for in the notice of
motion. The proposal of counsel for the Court to
order a lump sum settlement does however run
afoul of both this paragraph and paragraph 1.
Paragraph 3 is not relevant to the present
application.
Paragraph 4 reads:
4. Any special Court directions changing the tariff amount
contemplated by section 3 of Tariff B, should be obtained
before the taxation procedure is proceeded with so that such
direction will be available to support the amounts claimed in
the bill of costs at the time of the taxation.
This is exactly the course the applicant is follow
ing in this application, with the exception that the
two bills of costs are not complete. They do con
tain descriptions in general terms of the work done
and the amount of time spent on each item. The
items can easily be fitted into the appropriate
items in Tariff B. The incompleteness of the bills is
that no money figures are shown as being claimed
for the work done on any item. The only lead the
Court has to the fees the applicant intends to
charge is counsel's statement that in his view a
lump sum of eight times the fees contained in
Tariff B for Class III cases would be appropriate,
this amount to include the fees of the other two
counsel engaged on the case, with whom first
counsel would have to reach an agreement con
cerning their fees.
Paragraph 5 reads:
5. Reading Rule 344(7) with Rule 337(5) it is contemplated
that an application for a direction increasing costs should be
made while the matter is sufficiently fresh in the mind of the
Court that the Court is in a position to appreciate whether
there were present in the particular case circumstances justify
ing a departure from the normal tariff amount.
I fully agree that what is said in this paragraph
should apply in most circumstances, but I cannot
think it is applicable here, where the applicant had
no right to costs against the respondent until the
Supreme Court judgment was pronounced, more
than 21 months after the judgment of the Trial
Division and more than 14 months after the judg
ment of the Court of Appeal. It was thus impos
sible to make an application to increase the allow
able costs of the applicant while the matter was
still fresh in the mind of the Court. As I see it,
while the rule stated in the paragraph is a guide to
be generally followed, it is not to be applied to
negate the applicant's right to bring this motion,
since to do so would be to punish him for a delay
which it was impossible for him to avoid.
Paragraph 6 consists of quotations from the
judgment of Chief Justice Jackett in the Smer-
chanski case, all of which have been quoted supra.
Paragraph 7 is not relevant to this application,
nor is paragraph 8.
The proposal that the taxable fees of the appli
cant's counsel should be allowed at a level suf
ficiently high to include the fees of two additional
counsel was opposed by counsel for the respondent.
He referred to the English case—Re Adelphi
Hotel (Brighton) Ltd. [1953] 2 All E.R. 498. In
that case, heard in the Chancery Division, Vaisey
J. quoted with approval the following words of Sir
Richard Malins V.C. in Smith v. Butler (1875)
L.R. 19 Eq. 473:
... the costs chargeable under a taxation as between party and
party are all that are necessary to enable the adverse party to
conduct the litigation, and no more. Any charges merely for
conducting litigation more conveniently may be called luxuries,
and must be paid by the party incurring them.
Counsel submitted that in the action brought by
the plaintiff in this case against the Queen there
was no necessity for more than one counsel and
that the engaging of two additional counsel was a
luxury for which no fees should be allowed against
the respondent.
I am not sure of what the Court in the Adelphi
Hotel case actually meant. I may say that the
description of the amount of allowable taxable
costs contained in the judgment is in my view
couched in more restrictive terms than I have seen
elsewhere, certainly more restrictive than those
used by Chief Justice Jackett to describe it in the
Smerchanski case. Even if the language used in
the Adelphi Hotel case is correct, in my view the
word "necessary" should not be held, in the con
text in which it was used, to mean "absolutely
necessary", but rather what is "reasonably pru
dent" for the proper conduct of the case.
As I see the situation in the present case the
engagement of two additional counsel cannot prop-
erly be described as a luxury. This was a test case,
the result of which was to decide the rights of
seven other companies that were in the same posi
tion as the applicant. The two additional counsel
were also counsel for several of those seven compa
nies. It was highly important that counsel for the
applicant, conducting a test case, make sure that
all the facts that might be considered, by counsel
for the other companies as well as by himself, to be
relevant to the issues, were ascertained, con
sidered, and presented fairly and fully to the
Court, whether by way of an agreed statement of
facts, or by parol or documentary evidence at the
trial. Similarly, it was necessary, both in the vari
ous steps leading up to trial and at the trial itself,
and subsequently, in deciding upon and proceeding
with appeals to the Court of Appeal and Supreme
Court, that counsel for the applicant be fully
informed on all the points of law which counsel for
the other companies thought applicable.
All of the eight companies had a great deal of
money at stake in this action. The closest possible
collaboration between the applicant (plaintiff) and
the other seven companies was needed to make
certain, so far as was humanly possible, that the
test case was handled throughout in a thoroughly
efficient manner. Only by such collaboration could
the other seven companies feel satisfied that their
rights were being fully protected in the proceed
ings in the test case. Undoubtedly, numerous dis
cussions and conferences were held, and necessari
ly so, throughout the various steps in the
proceedings in the Trial Division and in the Court
of Appeal. The simplest and most effective way to
secure full cooperation was to engage counsel for
some of the other companies as additional counsel
in the test case. Doing so was in my opinion a
prudent and well warranted step.
I am of the opinion that the applicant should be
entitled to tax higher costs than are provided in
Tariff B, Class III. I base my conclusion on the
test nature of the case and the greatly increased
responsibility and work resulting therefrom. Not
enough information on the novelty of the case in
Canadian law was provided to the Court for me to
conclude that this element was of sufficient impor-
tance to warrant an increase in party and party
costs. In connection with counsel's statement that
the concept of "injurious affection" had been
extended by this case to include chattels, I note
that neither the reasons for judgment of Collier J.
nor those of the Supreme Court say anything
about "injurious affection". The final decision of
the Supreme Court, delivered by Ritchie J. was in
part [at page 118]:
For all these reasons I would allow this appeal, set aside the
judgment of the Court of Appeal and direct that judgment be
entered providing for a declaration that the appellant is entitled
to compensation in an amount equal to the fair market value of
its business as a going concern as at May 1, 1969, minus the
residual value of its remaining assets as of that date.....
The "remaining assets" would include the real
property (if any) and chattels such as boats and
the equipment and tools of the fishing business,
that belonged to the appellant and remained its
property after May 1, 1969. It is possible, though
not stated, that the words "residual value" were
used in recognition of the fact that taking away
the appellant's business on May 1, 1969, of itself
depreciated the value of its boats, fishing gear and
tools, for the sale of many of which there was no
available market. This possibility is far too slender
a reed on which to rely for accepting counsel's
submission about the novelty of the case.
The other two grounds which the applicant's
counsel submitted justified an increase in costs are,
in my opinion, precluded from acceptance by the
judgment of Chief Justice Jackett in the Smer-
chanski case, supra.
As mentioned earlier the two bills of costs con
tain no money figures for any of the items of
services rendered that are therein described. It
may well be that counsel's submission that an
amount equal to eight times the total authorized
by Tariff B for Class III proceedings would be
appropriate and that this amount would include
the fees for the other two counsel which he would
have to agree upon with them, meant his bill was
for eight times the amount authorized by Tariff B,
Class III for each of the items described in the two
bills. For the purpose of taxation and in order that
the taxing officer will have definite figures to work
with, I am assuming that this is what counsel
meant, subject to change if, at or before the taxa-
tion, counsel furnishes other figures as the true
figures for the various items in the bills.
Counsel was advised that at the taxation he
must be prepared to break down the general items
described in the bills into smaller items and give
much more information about what was involved
in each and the time required therefor.
I am directing that the two bills be taxed by a
taxing officer, subject to the following special
directions, which are given to enable him to reach
conclusions as to the amounts by which to increase
some or all of the items in the bills above the
amounts allowed in Tariff B, Class III.
The taxing officer is directed to consider the
fact that this is a test case, the result of which is to
settle the rights of seven other companies that are
in a similar position to that of the applicant herein,
all of which companies are, like the appellant,
claiming compensation for having had their busi
nesses taken away by the Freshwater Fish Mar
keting Act, R.S.C. 1970, c. F-13; to what extent
has the fact that it was a test case increased the
responsibility and work of counsel for the appli
cant, particularly in connection with consultations
and conferences held in the course of preparation
for trial and appeal, with the two additional coun
sel engaged by the applicant, who were also coun
sel for several of the other seven companies? He
should consider the reasonableness of the time
spent on the various items by reason of it being a
test case and what would be a fair fee, in the
circumstances, to allow for such extra responsibili
ty and time. As I have held that the applicant was
justified in engaging two other counsel, the taxing
officer should consider what would be a fair fee to
allow each of them for his services, which fee
should in each case be at a lower time rate than
that allowed for the first counsel. In all this the
taxing officer is to bear in mind that party and
party costs, as is the case here, are not designed to
constitute full reimbursement of all costs incurred
in the litigation, but only a reasonable portion
thereof.
The application for an order directing an
increase in Tariff B on the taxation of costs in both
the Trial Division and the Court of Appeal and for
an order extending the time for bringing this
application is granted.
The applicant is entitled to its costs of this
motion, which may be taxed as part of the 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.