PRACTICE |
Costs |
Porto Seguro Companhia de Seguros Gerais v. Federal Danube (The)
T-2057-85
2001 FCA 346, Décary J.A.
31/10/01
11 pp.
Supreme Court of Canada ordered new trial of action--Decided long-standing rule, followed by Trial Judge, of excluding parties calling expert evidence when assessors appointed should no longer be followed because constituted violation of rules of natural justice, inconsistent with principles of modern maritime law, justice--Rules applicant/plaintiff entitled to costs of appeal in Supreme Court of Canada, Federal Court of Appeal--Silent as to costs for first trial in which action dismissed with costs--Action dismissed after new trial--Following first trial, party-and-party costs in defendant's favour taxed in amount of $58,755.87 in fees, disbursements to which added lump sum award of $20,000--At first trial assessors appointed to assist court--Joyal J., and later Tremblay-Lamer J. ordering fees, expenses of assessors in first instance to be paid by Court Registry and ultimately to form part of costs awarded by Trial Judge--Issue disposition of costs of first trial--Principle in law of costs that, unless otherwise provided in appeal judgment which ordered new trial, costs of abortive trial should follow results of new trial unless special reasons dictating otherwise--Reid v. Kraus (2001), 203 Sask. R. 98 (C.A.), wherein defendant asked for non-suit, but elected not to put in defence, determining plaintiff should have costs of abortive trial on basis of costs thrown away nothwithstanding result of new trial--Robinson v. Point Grey (City), [1927] 2 D.L.R. 471 (B.C.C.A.) holding counsel's right, and in many cases, duty to move for dismissal at close of plaintiff's case, and if Judge errs in granting motion, not good reason for ordering client to pay costs of abortive trial--By asking for exclusion of three experts whose expertise overlapped those of assessors, defendant's conduct not within limited circumstances which would disentitle them from their costs of abortive trial even on a cost thrown-away basis--In circumstances, only proper for defendants to have made such application to first Trial Judge given weight of case law on point which Trial Judge found to follow--Otherwise counsel would not have been properly advising clients--Also application not leading to shutting down of trial, which continued to judgment, but without testimony of three experts--No basis for argument exclusion application made for tactical reasons, i.e. in belief defence more likely to succeed if plaintiff precluded from calling expert evidence--Court declined to exercise discretion and carve out some of costs through away from abortive first trial, namely fees paid by Registry on account of assessors which he estimated at $35,000, because of previour orders that assessors' fees, expenses would be paid by Registry initially but ultimately would form part of costs awarded by Trial Judge--In addition, on plaintiff's request that one of assessors appointed--Defendants entitled to taxed costs, disbursements of aborted first trial--Costs of this motion shall be assessed by taking officer.