T-2086-80
Maligne Building Ltd., Totem Tog Shops Jasper
Limited, and Quarks & Fribbles Limited, claim
ing on behalf of themselves and on behalf of all
other holders of Leases on Lands located in the
Townsite of Jasper National Park which, respec
tively, contain terms similar to those contained in
Leases held by these Plaintiffs (Plaintiffs)
v.
The Queen and Minister of the Environment of
Canada (Defendants)
Trial Division, Dubé J.—Ottawa, January 27,
1983.
Practice — Costs — Action dismissed with costs — Counsel
for defendants not speaking to costs — Judge declining to hear
motion under R. 337(5) because costs not overlooked in judg
ment — Defendants requesting special direction to increase
Tariff amounts — Under R. 337(5), Court may reconsider
pronouncement only where specified slip — R. 337(5) not
means for counsel to raise matter not addressed at trial
Finality in judgments — Taxation of costs not judge's func
tion — R. 344(7) application must be made at pronouncement
of judgment or within 10 days — R. 344(7) cannot be used to
alter judgment by substituting lump sum for costs to be taxed
— Alteration obtainable only under R. 337(5) or (6), in
circumstances specified — Increased costs not called for —
Party and party costs not intended as full compensation —
Amount of preparation not ground for increase, even with
difficulty or importance of case — Tariff not generous but
increase not achievable by motion — Motion dismissed
Federal Court Rules, C.R.C., c. 663, RR. 337(5),(6), 344(7),
346, Tariff B.
In January 1982, His Lordship dismissed the plaintiffs'
action with costs to the defendants, from the bench. The lawyer
for the defendants did not speak to costs at that time. The
defendants were unable subsequently to settle the quantum of
costs with the plaintiffs, and so brought a motion under Rule
337(5) in June 1982. His Lordship declined to hear the motion,
stating that costs had not been overlooked in the trial judgment;
that, accordingly, no reconsideration of the pronouncement was
called for; and that the defendants' lawyer should tax his costs
in the regular way. About one month later, the defendants
requested a special direction under Rule 344(7)(b), increasing
the amounts allowed them by Tariff B.
Held, the motion for a special direction is dismissed. The
defendants earlier motion was rejected because, under Rule
337(5), the Court may reconsider the terms of its pronounce-
ment only if one of the slips referred to in the provision has
occurred. Rule 337(5) is not simply a means whereby counsel
may later raise a matter which he failed to bring up in the
course of the trial. There must be finality in judgments. More
over, it is not the function of the judge to tax costs. As for the
application under Rule 344(7), it must be made at the time of
pronouncement or within 10 days thereafter. On the present
motion, the defendants are seeking, in effect, an alteration of
the trial judgment, so as to substitute the lump sum appearing
on his bill of costs for the costs taxed under Tariff B in the
regular manner. The decisions in Crabbe, Smerchanski and
Consolboard establish that Rule 344(7) cannot be used for this
purpose, and that such an alteration may be obtained only by
an application under Rule 337(5) or (6), and only if one of the
circumstances there specified obtains. In the instant case, the
proper course for the defendants' lawyer is to tax his costs in
the usual way. This is not, in any event, a case in which
increased costs are called for. Party and party costs are not
intended to provide a successful litigant with full compensation.
The amount of preparation involved in a trial is not a sufficient
ground for ordering that costs be awarded in sums greater than
those stipulated in the Tariff, even if the amount of preparation
is considered in conjunction with factors such as the difficulty
or importance of the case. The Tariff figures are not generous
and might be increased; however, that result is not to be
achieved by means of a motion.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Smerchanski v. Minister of National Revenue, [ 1979] 1
F.C. 801 (C.A.); MacMillan Bloedel (Saskatchewan)
Ltd. v. Consolboard Inc. (1981), 124 D.L.R. (3d) 342
(F.C.A.).
APPLIED:
Carruthers v. The Queen, [1983] 2 F.C. 350 (T.D.);
Guerin, et al. v. The Queen, [1982] 2 F.C. 445; 127
D.L.R. (3d) 170 (T.D.).
REFERRED TO:
Crabbe v. Minister of Transport, [1973] F.C. 1091
(C.A.).
COUNSEL:
J. E. Redmond, Q.C. for plaintiffs.
P. G. C. Ketchum, Q.C. for defendants.
SOLICITORS:
Milner & Steer, Edmonton, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
Dust J.: On January 19 and 20, 1982, I heard
the two-day trial of this action at Edmonton,
Alberta, and dismissed the plaintiffs' action with
costs from the bench. Counsel for the defendants,
Mr. P. Ketchum, Q.C., did not at the time rise to
speak to costs. On January 28, 1982, I released my
written reasons and the formal judgment.
On June 16, 1982, Mr. Ketchum wrote to the
Registrar of the Court informing him that he had
not been able to settle the matter of the quantum
of costs and that it would be necessary to have this
settled by direction of the Court. He therefore
asked that his motion dated March 2, 1982, pursu
ant to Rule 337(5), be heard by the Court. Rule
337(5) reads as follows:
Rule 337. .. .
(5) Within 10 days of the pronouncement of judgment under
paragraph (2)(a), or such further time as the Court may allow,
either before or after the expiration of that time, either party
may move the Court, as constituted at the time of the pro
nouncement, to reconsider the terms of the pronouncement, on
one or both of the following grounds, and no others:
(a) that the pronouncement does not accord with the reasons,
if any, that may have been given therefor;
(b) that some matter that should have been dealt with has
been overlooked or accidentally omitted.
The matter was placed before me on June 30,
1982, and by memorandum of that same date I
answered as follows:
I do not propose to hear this motion. This is not a case for
reconsidering the pronouncement of judgment. Costs have not
been overlooked in the judgment, they have been awarded to
the defendants. It is for defendants' solicitors to proceed with
the taxation of costs according to the Rules.
On July 27, 1982, Mr. Ketchum wrote again to
the Court requesting "a special sitting under Rule
344(7)(b) in order to get a direction from the
court as to whether the amounts allowed under the
Tariff should be increased, and as to whether a
special witness fee ought to be allowed". The letter
also requested that I preside at the special sitting.
The Rule invoked reads as follows:
Rule 344. .. .
(7) Any party may
(b) after the Court has reached a conclusion as to the
judgment to be pronounced, at the time of the return of the
motion for judgment,
whether or not the judgment includes any order concerning
costs, move the Court to make any special direction concerning
costs contemplated by this Rule, including any direction con
templated by Tariff B, and to decide any question as to the
application of any of the provisions in Rule 346. An application
under this paragraph in the Court of Appeal shall be made
before the Chief Justice or a judge nominated by him but either
party may apply to a Court composed of at least three judges to
review a decision so obtained.
In answer to the request, the Associate Chief
Justice indicated to Mr. Ketchum that his applica
tion could be made returnable before this Court in
Edmonton on September 20, 1982. He personally
heard the motion at that time and place and
ordered as follows:
Order to go allowing Defendants an extension of time for
filing and service of Notice of Motion for an Order for
increased amounts in respect to taxed costs herein. Motion to
be returnable at Edmonton before Dubé J. at a time to be fixed
by the Court.
On October 29, 1982, the Associate Chief Jus
tice presided over a telephone conference call with
counsel for both parties and ordered as follows:
IT IS HEREBY ORDERED that the parties make their submis
sions to the Trial Judge in writing with respect to the following
issues:
I. Is it appropriate in this case that the Defendants' application
for increased costs (including recovery of accounts paid to
experts) be dealt with by the Trial Judge before taxation?
2. Should the Defendants be allowed any increased costs, and if
so, in what amount?
In response to the order both parties filed their
respective submissions in December 1982. My rea
sons for order and order are as follows.
The plain meaning of Rule 337(5) (the so-called
"Slip Rule"), as I read it, is that the Court may
reconsider the terms of its pronouncement if the
pronouncement does not accord with the reasons
given by the judge, or that some matter has been
overlooked by the judge. In other words, if the
Court has slipped in some technical matter it may
take the necessary steps to correct the situation.
The Slip Rule is not a vehicle to assist counsel in
bringing something up after trial which he failed
to do in the course of trial. It is axiomatic that
there must be finality in judgments. I am rein
forced in that position by an observation made
very recently by my colleague Walsh J. in Car-
ruthers v. The Queen' wherein he said at page
354:
Rule 337(5) is precise, however, as to the grounds on which the
pronouncement may be varied, including that some matter
which should have been dealt with has been overlooked or
accidentally omitted. It is difficult to conclude that a special
direction respecting costs of an expert witness is something
which was overlooked or accidentally omitted, as there is no
requirement that the Court should decide whether such an
order should be made when rendering judgment.
Thus my first reaction to the notice of motion of
Mr. Ketchum as outlined in my memorandum
aforementioned. In my pronouncement Mr. Ketch-
um was given judgment with costs, as he requested
in his defence and in the course of the trial. It is
not the function of the judge to tax costs. Costs are
taxed under Rule 346 by the proper taxing officer.
Where a party is not satisfied with the determina
tion of the taxing officer, he may appeal.
In his written submission, Mr. Ketchum submits
that the appropriate procedure is as laid out by
Jackett C.J. in Smerchanski v. Minister of Na
tional Revenue, 2 wherein he said at pages 804 and
805:
In any event, in my view, special court directions changing
the tariff amounts, such as are contemplated by section 3 of
Tariff B and certain of the Rules, should be obtained before the
taxation procedure is proceeded with so that such directions
will be available to support the amounts claimed in the bill of
costs at the time of the taxation.
I might add that, as seems clear to me from a reading of
Rule 344(7) with Rule 337(5), it is contemplated that any such
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 justifying a depar
ture from the normal tariff amounts ....
In the Smerchanski case, the respondent Minis
ter of National Revenue had moved for an order
that costs be paid to him in the amount of $8,626.
' [1983] 2 F.C. 350 (T.D.).
2 [1979] 1 F.C. 801 (C.A.).
Jackett C.J. said that he was bound by Crabbe v.
Minister of Transport' to dismiss the application.
He said as follows [at page 803]:
That judgment establishes, in my view, that, where this Court
gives judgment 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 case
to be found in Rule 337(5) or (6). This is not such a case.
[Rule 337(6) deals with clerical mistakes.]
In other words, a party may apply under Rule
344(7) to move the Court for special directions as
to costs, but must do so at the pronouncement or
within 10 days after, while it is still fresh in the
mind of the Court.
In the Appendix to the Smerchanski decision,
Chief Justice Jackett rephrased a misleading para
graph from the Crabbe decision and revised it as
follows [at page 807]:
In the present case, since the judgment was pronounced in
open court, the matter of awarding a fixed amount in lieu of
costs to be taxed might have been spoken to before judgment
was pronounced or it might have been raised on an application
under Rule 337(5) or (6), that is to say, on the ground (1)
(Rule 337(5)) that the terms of the judgment did not accord
with the reasoning of the Court or that there had been an
accidental omission, or (2) (Rule 337(6)) that there had been a
clerical or accidental slip which required correction.
What Mr. Ketchum is seeking by his application
is to have this Court alter its judgment dismissing
the action with costs, so that in lieu of the costs
being taxed in the normal way under Tariff B, it
would substitute the sum laid out in his bill of
costs which is annexed to his application. Such a
request was denied in MacMillan Bloedel (Sas-
katchewan) Ltd. v. Consolboard Inc., 4 where Ryan
J. of the Federal Court of Appeal relied on the
Smerchanski and Crabbe decisions and said at
page 347:
This being so, this Court, in my view, has no authority on an
application under para. (7) of the Rule to substitute the award
of a fixed or lump sum for the costs awarded by the Supreme
Court judgment.
Again, the solution to Mr. Ketchum's problem is
very simply to bring his bill of costs before the
proper taxing officer, the usual way. If he is not
happy with the determination of the officer, he
may appeal.
3 [1973] F.C. 1091 (C.A.).
4 (1981), 124 D.L.R. (3d) 342 (F.C.A.).
That answer to the first question really disposes
of the second question, as to whether the defend
ants ought to be allowed increased costs. However,
so as to prevent further loss of time and energy, I
am prepared to state now that I, in the exercise of
my discretion, would not allow any increased costs
with respect to this two-day trial. It comes out very
clearly from the above Smerchanski decision that
party and party costs are not designed to constitute
full compensation to a successful party, and that
the volume of work in preparation, considered
alone or in conjunction with such factors as the
difficulty or the importance of the case, does not
constitute an adequate basis for the exercise of
judicial discretion to increase tariff costs items. I
would certainly agree, as perhaps most judges and
lawyers would, that Federal Court Tariff fees are
less than generous to the successful party and
might be enriched in this period of high inflation.
That purpose will not be achieved by way of a
motion to the Court. In this connection a quote
from my colleague Collier J. in a recent case,
Guerin, et al. v. The Queen,' [at page 454 of the
Federal Court Reports] seems most appropriate:
Both the Smerchanski and Consolboard cases, at trial and
appeal, were lengthy, complicated and difficult. So was this
case. But those factors are not sufficient, in my mind, to
warrant a special direction as to costs. Undoubtedly the tariffs
in the Federal Court, which was set in 1971, are, because of the
tremendous increase in inflation and cost of living in the last 10
years, very low. The remedy is, in my view, to increase the
tariffs, not to make arbitrary increases in individual cases to try
and compensate for past economic and inflationary increases.
Therefore, my answers to both questions: firstly,
it is not appropriate in this case that the defend
ants' application for increased costs be dealt with
by the Trial Judge before taxation; secondly, it is
not appropriate in this case that the defendants be
allowed any increased costs. The motion of the
defendants is therefore dismissed with costs, which
costs shall be taxed by a taxing officer if
necessary.
ORDER
The motion of the defendants is dismissed with
costs.
5 [1982] 2 F.C. 445; 127 D.L.R. (3d) 170 (T.D.).
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.