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National Capital Commission (Plaintiff) v.
S. Edgar Dussault, Jacques E. Dussault, Pierre Dussault and S. E. Dussault & Fils Inc. (Defendants)
Trial Division, Noël A.C.J.—Ottawa, September 7 and 8, 1971.
Costs—Expropriation action—Amount awarded $60,- 000—Classification of action under Tariff A—Expert wit nesses, fees of—Motion for direction—Federal Court Act, Tariff A, s. 1(3)(d) and (4)(a)—Rule 344(7).
Plaintiff commenced an expropriation action against defendants in 1964 offering $37,500 for their property. In 1966 the amount was increased by amendment to $62,500 but was later reduced to $36,000. This Court gave judgment for $60,000 and costs. Defendants paid some $8,000 to 5 persons for expert opinions and applied for directions respecting costs.
Held: (1) The amount involved "on the face of the pro ceedings" was more than $50,000 and it was therefore a Class III proceeding under s. 1(3)(d) of Tariff A, and should in any event be so classed by direction of the Court under s. 1(4)(a) of Tariff A.
(2) Defendants should have leave to apply to the trial judge for special directions as to costs and expert witnesses' fees under Rule 344(7).
MOTION.
J. P. Fortin for plaintiff.
P. Taché Q.C., for defendants.
Noel. A.C.J.—Defendants have submitted a motion for directions as to the costs plaintiff must pay as a result of the judgment delivered on August 21, 1970, by Dumoulin J., ordering plaintiff to pay defendants "the sum of $60,000 with interest at the rate of 5% per annum from the date of expropriation to December 28th, 1964, at which time a partial indemnity of $30,000 was paid to them, and then on the balance of $30,000 from that date to the pres ent time. Defendants shall be entitled to recov er costs after taxation in due form".
Defendants submit, firstly, that their claim should be classified in the category of actions
mentioned in Tariff A of the new Rules of this Court as being Class III (see s. 1(3)(d) of Tariff A).
Although the information filed by the Nation al Capital Commission was amended twice, I am persuaded that the step in question here must be treated as a step in a proceeding which is not covered by par. 1(3)(d), and that it must, accordingly, fall within Class III. It is true that the information was filed by the plaintiff on July 15, 1964, for $37,500, but it was amended on March 4, 1966, and the amount offered was increased to $62,500, though by motion dated May 4, 1970, it was reduced to $36,000, and a portion of the indemnity, $30,000, was paid to the defendants on December 28, 1964. It seems to me that in the circumstances, and in view of the decision given, namely an order to pay $60,000, there is an amount involved "on the face of the proceedings that is $50,000 or more", which is sufficient grounds, under s. 1(3)(d) of Tariff A of this Court, for treating this step as falling within Class III of the Tariff of this Court.
Moreover, if I had any doubt regarding the inclusion of this proceeding in Class III of the Tariff, I would nonetheless hold, by virtue of the power conferred on me by s. 1(4)(a) of the Tariff of this Court, that it should be included in Class III.
The defendants also complain of the fact that, having spent the amounts cited below to retain and pay for the services of the experts who testified for them at the hearing on the merits of this case, they cannot now obtain payment of the same, under the new Rules, without an Order from this Court. The defendants-suppli ants did in fact spend the following amounts for expert opinions:
(1) Fees to expert Paul-Emile
Mantha $1,811.95
(2) Fees to expert W. L. Moffatt 717.50
(3) Fees to the Cie d'Évaluation
Métropolitaine Ltée 1,291.50
(4) Fees to S.E. Dussault & Fils
Inc. 1,800.00
(5) Fees to Jean Issalys, architect 2,500.00
The new rule on expert witnesses is found in s. 4 of Tariff A and reads as follows:
4. (1) When a witness is a barrister, advocate, attorney, solicitor, physician, surgeon, engineer, architect, surveyor or accountant (other than a party) who is called on to give evidence in consequence of any professional or technical services rendered by him, there shall be substituted for the amount of $5 in subsection (1) of section 3, the amount of $35, but otherwise section 3 is applicable to such a witness.
(2) In lieu of making a payment under section 3, there may be paid to a witness who appears to give evidence as an expert a reasonable payment for the services performed by the witness in preparing himself to give evidence and giving evidence.
This Rule must be taken together with s. 2(2)(a) and (b) of Tariff B of this Court which reads as follows:
2. (2) Disbursements:
(a) all disbursements made under Tariff A may be allowed, except that payments to a witness under para graph 4(2) may only be allowed to the extent directed by the Court under Rule 344(7),
(b) such other disbursements may be allowed as were essential for the conduct of the action.
Rule 344(7) of the Rules of this Court, to which the above section refers, allows a party to move the Court to make any special direction concerning costs, including any direction con templated by Tariff B, and to decide any ques tion as to the application of any of the provi sions in Rule 346, dealing with taxation; this must be done within ten days of the pronounce ment of judgment or such further time as the Court may allow, either before or after the expiration of that time, in accordance with Rule 337(5) of the Rules of this Court.
It seems to me that, in spite of the length of time it took defendants to have their costs taxed, this is nevertheless a case in which the Court should grant defendants' application for an extension of the ten-day period, so as to allow them to take advantage of the provisions of Rule 344(7). It would, indeed, be unjust to deprive defendants of a remedy because they did not exercise it within a time limit which they could not have known of when the judgment was pronounced, as the time limit specified in
the Rule was in fact not yet in effect at that date.
The defendants-suppliants will therefore be entitled to have their costs taxed as a proceed ing within Class III of Tariff A of this Court, and they may, within 15 days from the date of these presents, submit a motion to the Court requesting special directions as to costs and experts' fees under Rule 344(7) of the Rules of this Court; the said motion will be referred to the judge who heard this case and pronounced judgment. Plaintiff may at this time indicate not only the grounds it may have for disallowing any of these costs or fees, but also, if applica ble, for reducing them, the whole without costs.
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