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David Gerald Crabbe (Appellant) v.
The Honourable Donald C. Jamieson, Minister of Transport (Respondent)
Court of Appeal, Jackett C.J., Thurlow and Pratte JJ.—Ottawa, November 30, 1973.
Practice—Costs—Taxation—Discretion of Court to sub stitute lump sum after judgment—Federal Court Rules 334, 337(5)(6), 344, 346.
APPLICATION under Rule 324 of Federal Court Rules.
SOLICITORS:
Langlois, Drouin and Laflamme, Quebec, for appellant.
Deputy Attorney General of Canada for respondent.
The judgment of the Court was delivered by
JACKETT C.J.—This is an application made pursuant to Rule 324 to fix the costs awarded by the judgment of the Court pronounced on June 9, 1972. That judgment ordered payment of the appellant's costs of the appeal "when taxed".
The fact that such an application has been made suggests the need for some exposition of the scheme of the Rules regarding awards of costs.
In the first place, the limits within which the Court can vary its own judgment by substituting an award of a lump sum for costs for the award of costs to be taxed are very narrow. A judg ment must always be in the form of a separate document signed by the presiding judge (Rule 337(2)(a) and (3)) or, in the case of an interlocu tory judgment, endorsed by the judge on some other document. Such a judgment is final (Rule 337(4)) except that
(a) its terms may be reconsidered on the ground that they do not accord with the rea sons or that there has been an accidental omission (Rule 337(5)), and
(b) clerical mistakes and accidental slips, etc., may be corrected (Rule 337(6)).
There are three ways in which the Court takes action in respect of costs:
(a) an award of costs in a judgment disposing of a proceeding,
(b) a direction or order of the Court as to what is or is not to be allowed in the taxation of costs where costs are to be taxed, and
(c) a decision on an "appeal" from a taxation of costs by a taxing officer.
First, with reference to an award of costs.
Rule 334(1) provides that costs of all "pro- ceedings" are in the discretion of the Court and "unless otherwise ordered" follow the event. This means that, where there is a judgment disposing of a proceeding, that judgment, whether it is interlocutory or final, must expressly or impliedly decide what costs, if any, are to be paid in respect of the proceeding because, if the judgment does not expressly deal with costs, the result of that judgment is that costs "follow the event". If the Court, by its judgment, deals expressly with costs, it may award a "lump sum" or it may award "taxed costs" (last sentence of Rule 344(1)) and, in either event, it must take into account the direc tions given by Rule 344(3) for exercising its discretion.
Secondly, with reference to directions or orders of the Court as to what may be taxed by the taxing officer.
In addition to the discretion of the Court as to what the judgment shall say as to costs (i.e., lump sum or costs to be taxed as to all or part only of expenses incurred), the Court has an authority to give directions that are to be taken into account by the taxing master in taxing costs. Rule 344(4), read with Rule 344(5), pro vides for directions that "no costs be allowed" in certain respects. Tariff B, paragraph 3, con templates a direction altering the amounts that
may otherwise be allowed under the Tariff. Rule 346 lays down rules governing taxation of costs that apply unless the Court otherwise orders. Such special directions or orders might be made at any appropriate time during the proceedings or as contemplated by Rule 344(7).
This view of the role of the Court is con firmed by Rule 346(1), which reads as follows:
Rule 346. (1) All costs between party and party shall be as determined by, or pursuant to, the Court's judgment and directions and, subject thereto, Tariff B in the Appendix to these Rules and this Rule are applicable to the taxation of party and party costs.
Finally, it is to be noted that the so-called appeal from a taxation is to be found in Rule 346(2), which provides that costs are to be taxed by a taxing officer "subject to review by the Court upon the application of any party dissatisfied with such a taxation". It is obvious that, on such a review, the Court decides wheth er the taxing officer erred in performing his duty and on such a proceeding it can neither change the Court's judgment or direction nor make a direction or order contemplated by Rule 344(4) or paragraph 3 of Tariff B.
In the present case since the judgment was pronounced in open court the matter of award ing a fixed amount in lieu of costs to be taxed might have been spoken to before the judgment was pronounced or it might have been raised on an application under Rule 344(7), within the time limited by Rule 337(5), to reconsider the pronouncement on any ground falling within Rules 337(5) and 337(6), that is to say, on the ground (1) (Rule 337(5)) that the terms of the judgment did not accord with the reasons of the Court or that there had been an accidental omis sion or (2) (Rule 337(6)) that there had been a clerical or accidental slip which required correc tion. However, no order for payment of a fixed amount in lieu of taxed costs was obtained or included in the judgment as pronounced and the material put before the Court on this application
discloses no ground of the kind referred to in either Rule 337(5) or Rule 337(6). The only reason that the material does suggest for vary ing the judgment is that the appellant considers that what he could tax under the applicable tariff would not be sufficient but, if that is the case, there was procedure under Rule 344(7) and paragraph 3 of Tariff B by which the adequacy of the tariff amounts might have been questioned and a direction varying them might have been obtained had an application been made within the time prescribed.
It is perhaps not amiss to note as well that the material before the Court discloses no reason why the present application should be enter tained out of time or so long after the time prescribed by Rules 344(7) and 337(5) for an application to vary the judgment expired.
The application accordingly fails.
The question of the applicable tariff was also raised and argued in the submissions of counsel on the application but, in view of the foregoing, it is not necessary to decide the point. However, without doing so but in the hope of expediting the matter to a conclusion, it may be suggested that it seems clear enough on reading subpara- graph (3) of paragraph 1 of Tariff A that the appeal does not fall within clauses (a), (b) or (c) thereof but falls within clause (d) and that the proceeding was accordingly a Class III step.
The application should be dismissed without costs.
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