T-5185-78
Eastern Canada Towing Limited (Plaintiff)
v.
The Ship Algobay and her owners and the Ship
Cielo Bianco and her owners (Defendants)
Trial Division, Walsh J.—Montreal, January 14;
Ottawa, January 21, 1980.
Practice — Costs — Motion to include half of disburse
ments for expert evidence re value of vessel in support of
motion to reduce bail and other half of disbursements in other
action proceeding simultaneously — Bail bond reduced in
other action but "costs ... in the cause" — Appeal allowed
with "costs in both Courts" — Taxation of costs allowed
before trial — Federal Court Rule 344(7).
MOTION.
COUNSEL:
M. de Man for plaintiff.
G. Barry for defendants the Ship Cielo
Bianco and her owners.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for plaintiff.
McTaggart, Potts, Stone & Herridge,
Toronto, for defendants the Ship Algobay and
her owners.
McMaster Meighen, Montreal, for defendants
the Ship Cielo Bianco and her owners.
The following are the reasons for order ren
dered in English by
WALSH J.: This is a motion for special direc
tions as to costs pursuant to Rule 344(7) seeking
an order that there be included in the taxable bill
of costs in each of this action and an action
proceeding simultaneously bearing Court No.
T-5213-78 between Algoma Central Railway v.
The "Cielo Bianco" in which a similar motion was
made, an amount equivalent to half of the dis
bursements incurred by the ship Cielo Bianco and
her owners in respect of the expert evidence
adduced as to the value of the said vessel in
support of a motion for moderation of bail. A bail
bond had been filed in the amount $5,500,000 and
the motion was made for moderation of bail in
both actions. In connection with these motions an
appraiser was retained and paid the sum of $500
for his affidavit of valuation and a further sum of
$750 for professional services in preparation for
cross-examination on the affidavit, and a marine
surveyor was paid $212. It is these amounts which
the motions seek to recover by special direction as
to taxation, no additional fees above the Tariff
amounts being sought.
Mahoney J. heard the motion and by an order
dated January 15, 1979 reduced the bail to $4
million concluding that "Costs of the application
... be in the cause". As a result there would
therefore be no taxation until after the trial and no
special order for taxation under Rule 344(7) was
made in Mahoney J.'s order. This decision of
Mahoney J. was appealed by the Ship Cielo
Bianco and her owners and cross appeals were
brought by Eastern Canada Towing Limited and
Algoma Central Railway respectively. By judg
ment of the Court of Appeal dated December 11,
1979, the appeals were allowed "with costs in both
Courts, the cross appeals being dismissed with
costs" and the bail bond was further reduced to
$3,000,000. Appeal costs are taxed in the Trial
Division. The Appeal Court judgment varied the
order of the Trial Division that costs should be in
the cause by awarding costs to the appellants both
in the Court of Appeal and in the Trial Division,
so that the successful appellants became entitled to
have their bill of costs taxed forthwith. In making
its decision the Court of Appeal made no special
direction pursuant to Rule 344(7), and it is un
likely that it would have done so since taxation of
costs is left with the Trial Division. It is true that
Rule 344(7) provides that "An application under
this paragraph in the Court of Appeal shall be
made before the Chief Justice or a judge nominat
ed by him but either party may apply to a Court
composed of at least three judges to review a
decision so obtained" but, as counsel for appellants
points out no attempt is being made to increase in
any way the costs in the Appeal Court, but what is
sought is only the allowance of what he considers
to be proper and necessary disbursements made in
connection with the motion in the Trial Division,
which is a matter for the Trial Division to decide.
In the normal course of events pursuant to the
order in the Trial Division this would have been
dealt with by the judge hearing the trial on the
merits, but would only become an issue in the
event that appellants were successful in their
defences to the action. The effect of the judgment
of the Court of Appeal has been to advance the
date for this determination and to make it a matter
to be determined whether or not appellants are
eventually successful on the merits.
The situation is unusual and the Rules leave
something to be desired in determining how to deal
with it. It would appear that the amounts claimed
are not unreasonable nor unjustified, in view of the
successful outcome of the application to reduce the
bail which in the end result was substantially
reduced from $5,500,000 to $3,000,000. Normally
a decision to make a special direction as to costs
pursuant to Rule 344(7) would be made by the
judge who heard the matter, but in the unusual
circumstances of this case where the matter now
has to be dealt with forthwith, rather than await
ing the outcome of the trial, I believe it would be
appropriate for me to deal with the matter and I
will direct that these disbursements be included in
the taxation of the bill of costs.
ORDER
Pursuant to Rule 344(7) there shall be included
in the taxation of the bill of costs herein on the
motion to reduce bail one-half of the sums payable
to Gibson Shipbrokers Limited of $500 for valua
tion of the Cielo Bianco, $750 payable to Gibson
Shipbrokers Limited for professional services in
preparation for cross-examination of its witness on
an affidavit, and $212 to R. MacDonald, Marine
Officer, the other half of said amounts to be
included in taxation of the bill of costs in file
number T-5213-78, Algoma Central Railway v.
The "Cielo Bianco".
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.