PRACTICE
Costs
Appeal from Federal Court order declining to hear motion for directions as to costs under Federal Courts Rules, r. 403 on ground functus—R. 403 motion must be considered statutorily sanctioned procedure for amendment or variation of judgment: Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc., [2003] 2 F.C. 451 (C.A.)—R. 403 overriding more general requirements for judgment reconsideration in rule 397—Statement in AB Hassle v. Genpharm Inc., 2004 FC 892, that r. 403 not providing avenue to vary order that specifies costs to be awarded, wrong—Based on misconception of facts in Consorzio in which judgment included order for costs, and on decision in Canada v. Canadian Pacific Ltd., 2002 FCA 98, which was distinguishable in that party sought under r. 403 costs in other courts, proceedings—Res judicata, functus officio doctrines not applicable—Judge seized with motion must entertain, dispose of it—Motion can be denied if considered vexatious—Brief discussion of costs recorded in transcripts not supporting submission counsel for Apotex waived right to claim elevated costs—In agreeing to costs “in the cause”, counsel only agreeing on party to bear costs, not quantum—Appeal allowed with costs—Federal Courts Rules, SOR/198‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 397, 403.
Apotex Inc. v. Canada (A‑381‑04, 2005 FCA 128, Décary J.A., judgment dated 12/4/05, 4 pp.)