PRACTICE |
Costs |
Wilson v. Canada
T-1677-79, T-3488-82, T-2518-89, T-2521-89, T-2522-89
Stinson T.O.
13/4/00
39 pp.
Plaintiff presenting three bills of costs; defendant presenting two bills of costs--Plaintiff objecting under Income Tax Act, ss. 222.1, 225.1 to assessment of defendant's bills of costs while appeals pending--Costs may be assessed, but not set off against costs owed to him in other matters--Court awarded interest in T-1677-79 and T-3488-82 in which plaintiff successful--Plaintiff requesting pre-, post-judgment interest since 1976/1977--Asserting delay in pursuing costs not his fault, but that of counsel--Interest penalty or premium for use, delay, deferral relative to money--Costs are indemnity, not compensation or damages--Federal Court Rules, 1998, r. 400(3)(o) permitting Court to consider any other matter considered relevant in exercise of discretion as to costs--R. 409 authorizing assessment officer to consider factors in r. 400(3) in assessing costs--Federal Court Act, ss. 36, 37 providing for interest--Term "assessing costs" in r. 409 cannot be stretched as function of r. 407 (requiring party-and-party costs to be assessed in accordance with column III of Tariff B) to add element of compensation or damages to assessed costs--R. 409 cannot be used to usurp Court's authority in area of interest, including any relief available under various statutes cited--R. 409 permitting assessment officer leeway only to apply consideration of refusal or neglect in bringing bill of costs to assessment as function of r. 407 in arriving at actual amount for costs as indemnity--Plaintiff's evidence problematic--As Crown satisfying assessment officer plaintiff frustrated its efforts to resolve costs, lower amounts allowed for some items--R. 408(2), permitting adjustment of costs by way of set-off where parties liable to pay costs to each other, should be given broad, liberal interpretation--Review of cases cited in Mark M. Orkin, Q.C., The Law of Costs, 2nd ed. Aurora, Ont.: Canada Law Book, 1994--Plaintiff asserting awards of costs, as function of discrete actions or proceedings, should not be congealed into single block, thereby precluding independent execution and collection of each award of costs all as function of independent judgments--Interlocutory proceeding having own issues, disposition independent of, distinct from main action or any other interlocutory proceeding and therefore, although part of continuum of that single piece of litigation not part of deliberations required of trial judge--However arising out of same cause and appropriate for set-off--Rationales for set-off of costs between action and counterclaim, action and appeal, and between independent actions much more divisive issues in authorities--Here parties same; different causes of action heard together in one of trials; same Court, Act governing subject-matter involved; apparently no solicitor's lien for costs in issue; no delay required to address outstanding assessments--Issue degree to which equitable jurisdiction reserved to r. 400(1)--R. 3 providing Rules shall be interpreted, applied so as to secure just, most expeditious, least expensive determination of every proceeding on merits--Operation not confined to final judgment, but including steps such as here for assessment of costs--Crown satisfying assessment officer if results of five assessments left for independent executory processes, some concern about prejudice to its position because of apparent lack of any realistic means of recovery against plaintiff--Giving r. 408(2) pragmatic reading in light of r. 3, on equitable considerations Crown should receive set-off requested--Single certificate of assessment styled in five actions issued resulting in set-off of $1,079.66 in favour of plaintiff--Federal Court Rules, 1998, SOR/98-106, rr. 3, 400(1),(3), 407, 408, 409--Federal Court Act, R.S.C., 1985, c. F-7, ss. 36 (as am. by S.C. 1990, c. 8, s. 9), 37 (as am. idem)--Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, ss. 222.1 (as enacted by S.C. 1998, c. 19, s. 223), 225.1 (as am. by S.C. (1994), c. 7. Sch. II, s. 184; Sch. VIII, s. 131; c. 21, s. 103; 1998, c. 19, s. 225).