A-85-01
2002 FCA 417
Consorzio del Prosciutto di Parma (Appellant)
v.
Maple Leaf Meats Inc. (Respondent)
Indexed as: Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc. (C.A.)
Court of Appeal, Décary, Rothstein and Nadon JJ.A.-- Ottawa, October 28, 2002.
Practice -- Costs -- Motion for increased costs under Federal Court Rules, 1998, r. 403 -- Application of r. 403 in context of Court of Appeal judgment -- Numerous issues raised on appeal involving complex facts, expert evidence (Décary J.A. dissenting) in part -- Amount of work required of respondent's counsel justifying increased costs -- Increased costs so awarded party-and-party costs.
This was a motion for increased costs under rule 403 of the Federal Court Rules, 1998 whereby the respondent asked the Court to award a lump sum of $40,000 party-and-party costs. McKeown J. dismissed the application under section 57 of the Trade-Marks Act to expunge from the Register of Trade-Marks the respondent's mark "Parma" and asked the parties to make written submissions should they not agree on costs. The appellant filed a notice of appeal with respect to that order. Subsequently McKeown J. awarded the "costs to the Respondent (Maple Leaf) on a party and party basis, to be assessed at the high end of Column 3". The appellant filed a second notice of appeal. The first appeal was dismissed with costs and the second was dismissed without costs. The respondent made the within motion in the first appeal, alleging that the appeal had raised complex qu estions of fact and, in particular, complex matters relevant to survey evidence. The appellant asked that the motion be dismissed with costs.
Held (Décary J.A. dissenting in part), the motion should be allowed to the extent that the repondent should be aw arded party-and-party costs of $25,000.
Per Rothstein J.A. (Nadon J.A. concurring): A motion under rule 403 must be considered a statutorily sanctioned procedure for the amendment or variation of a judgment. In that context, the panel of the Appeal Division who decided the matter should decide a motion under rule 403, unless it is impracticable or impossible, in which case the Chief Justice may designate another judge or panel to decide the matter. A motion under rule 403 is for directions to an assessment officer. Nothing in rule 403 precludes the panel of the Appeal Division from making a lump-sum award of costs and directing the assessment officer to assess costs on that basis.
The respondent should be awarded increased costs. Where, as here, numerous issues are raised on appeal involving complex facts and expert evidence, the amount of work required of respondent's counsel justified increased costs. Such costs are party-and-party costs. They do not indemnify the successful party for its so licitor-client costs and they are not intended to punish the unsuccessful party for inappropriate conduct. An award of party-and-party costs is not an exact science. It is only an estimate of the amount the Court considers appropriate as a contribution towards the successful party's solicitor-client costs, not rigid adherence to column III of the table to Tariff B which is, itself, arbitrary. The first principle in the adjudication of costs is that the Court has "full discretionary power" as to the amount o f costs. Column III of Tariff B is a default provision. Only when the Court does not make a specific order otherwise will costs be assessed in accordance with column III of Tariff B. The Court, therefore, does have discretion to depart from the Tariff, especially where it considers an award of costs according to the Tariff to be unsatisfactory. The award of costs is a matter of judgment as to what is appropriate and not an accounting exercise. The respondent was awarded party-and-party costs of $25,000, inclusive of fees, disbursements and GST and the costs of this motion.
Per Décary J.A. (dissenting in part): Any motion under rule 403 for directions to be given to the assessment officer that purports to modify the basis for assessment and/or the applicable column is a motion seeking to vary the order of the Court. Since the "directions" would modify the order of the Court, they must be given by the same panel that made the original order. Rule 403(3) is intended for the Trial Division. It should not be inte rpreted in the context of Court of Appeal judgment so as to confer jurisdiction on the judge "who signed the judgment", rather than the full panel. Any variation of the award of costs is a variation of the judgment and a single judge has no jurisdiction to vary a judgment of the Court. The Rules must be interpreted in context. Where they fail to distinguish between the Trial Division and the Court of Appeal, any literal interpretation which leads to a fundamental misunderstanding of the appeal process should be avoided. It does not appear from its minutes that the attention of the Rules Committee was drawn to the issue of quorum.
The Supreme Court of Canada has made it clear that awarding costs on a solicitor-and-client basis (which are the costs actually incurred by a litigant) remains exceptional and is generally associated with reprehensible, scandalous or outrageous conduct on the part of one of the parties. The factors listed in subsection 400(3) were largely inapplicable. The issues were typical of those argued in trade-mark appeals and none of them involved particularly complex issues of fact and law. The appeal was conducted in the usual manner and no allegation was made that it was conducted improperly by counsel for the appellant. That costs were assessed at the upper end of column III in the Trial Division was relevant but not determinative with respect to the process in the Court of Appeal. That the respondent won on appeal militated in favour of costs being awarded to it, not in favour of higher costs. There was nothing unusual in the result achieved by the respondent. That "a substantial amount of work" was conducted does not necessarily lead to the conclusion that all the work done was necessary or that the losing party should automatically be m ade liable for the billing rates the winning party was prepared to pay to its own counsel. However, the work done in preparation for the hearing of the appeal should be taken into account. The Court always retains its discretion under subsection 400(4) to award "a lump sum in lieu of, or in addition to, any assessed costs", but such discretion should be exercised in exceptional cases only and in a manner that can be proportionally related to the Tariff. This case was not exceptional. Arbitrary use of the Co urt's discretion would run contrary to the principle of judicial comity. The attribution of lump sums far exceeding the amounts permissible under Tariff B in order to compensate for part of the actual costs incurred by a litigant in a non-exceptional case is likely to lead to an undermining of the Tariff, as well as unpredictability, arbitrariness and unfairness in costs awards. The ability to estimate the cost of litigation plays an important role in one's access to the courts. Any substantial change in th e Court's practice should be left to the Rules Committee. The assessment officer should be directed, under rule 403, to assess the costs on appeal in the form of a lump sum of $10,000 inclusive of fees and disbursements.
statutes and regulations judicially
considered
Federal Court Act, R.S.C., 1985, c. F-7, ss. 16(2) (as am. by S.C. 1990, c. 8, s. 2), 45.1 (as enacted idem, s. 13), 46(1)(g).
| Federal Court Rules, C.R.C., c. 663, RR. 344(7) (am. by SOR/87-221, s. 2), 346, Tariff B (as am. by SOR/87-221, s. 8; 95-282, s. 5). |
| Federal Court Rules, 1998, SOR/98-106, rr. 2 "Court", 3, 56, 397, 399, 400, 403, 407, Tariff B, Column III. |
| Trade-marks Act, R.S.C., 1985, c. T-13, s. 57. |
cases judicially considered
applied:
Hamilton Marine & Engineering Ltd. v. CSL Group Inc. (1995), 99 F.T.R. 285 (F.C.T.D.).
considered:
Sim & McBurney v. Buttino Investments Inc. (1997), 77 C.P.R. (3d) 512; 221 N.R. 209 (F.C.A.); Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc., [2001] 2 F.C. 536; (2001), 11 C.P.R. (4th) 48; 205 F.T.R. 176 (T.D.); affd (2002), 18 C.P.R. (4th) 414; 291 N.R. 305 (F.C.A.); Smerchanski v. Minister of National Revenue, [1979] 1 F.C. 801; [1977] C.T.C. 283; (1977), 77 DTC 5198; 16 N.R. 38 (C.A.); Wihksne v. Canada (Attorney General), 2002 FCA 356; [2002] F.C.J. No. 1394 (C.A.) (QL).
referred to:
Eli Lilly and Co. v. Novopharm Ltd., [1999] 2 F.C. 175; (1998), 85 C.P.R. (3d) 219 (C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22.
MOTION for increased costs under rule 403 of the Federal Court Rules, 1998 whereby the respondent requested a lump sum of $40,000 party-and-party costs. Motion allowed to the extent that the respondent was awarded party-and-party costs of $25,000.
written representations by:
Brian D. Edmonds for appellant.
James H. Buchan and A. Kelly Gill for respondent.
solicitors of record:
McCarthy Tétrault LLP, Toronto, for appellant.
Gowling Lafleur Henderson LLP, Toronto, for respondent.
The following are the reasons for order rendered in English by
[1]Rothstein J.A.: This is a motion for increased costs under rule 403 of the Federal Court Rules, 1998, SOR/98-106. The material filed indicates that the respondent incurred solicitor-and-client fees and disbursements, including GST, of $80,707.59. The respondent asked the Court to award a lump sum of $40,000 party-and-party costs.
[2]Rule 403 provides:
403. (1) A party may request that directions be given to the assessment officer respecting any matter referred to in rule 400,
(a) by serving and filing a notice of motion within 30 days after judgment has been pronounced; or
(b) in a motion for judgment under subsection 394(2).
(2) A motion may be brought under paragraph (1)(a) whether or not the judgment included an order concerning costs.
(3) A motion under paragraph (1)(a) shall be brought before the judge or prothonotary who signed the judgment.
[3]A preliminary question is whether the words of subsection 403(3) permit the motion to be determined by the judge who signed the judgment, or whether it should be decided by the panel that heard the appeal. I am of the view that interpreted in context, subsection 403(3) intends that a motion brought under rule 403 be decided by the panel of the Appeal Division who heard the appeal. Paragraph 403(1)(a) provides for a motion for directions after judgment has been pronounced. Subsection 403(2) provides that a motion for directions under subsection 403(1) may be brought even if the judgment that has been pronounced did not include an order concerning costs. Therefore, a motion under rule 403 must be considered a statutorily sanctioned procedure for the amendment or variation of a judgment. In that context, the panel that decided the matter should decide a motion under rule 403, unless it is impracticable or impossible, in which case, pursuant to rule 3, the Chief Justice may designate another judge or panel to decide the matter.
[4]A motion under rule 403 is for directions to an assessment officer. Nothing in rule 403 precludes the prothonotary or judge of the Trial Division or panel of the Appeal Division from directing the assessment officer to assess increased costs on the basis of a lump- sum award. Therefore, I interpret rule 403 as permitting the panel of the Appeal Division to make a lump-sum award of costs as is requested in this motion and direct the assessment officer to assess costs on that basis.
[5]The respondent has submitted that 12 issues were raised on appeal and each required a full response. The issues involved complex questions of fact, including having to deal with expert evidence and survey methodology. The argument in the appeal lasted close to a whole day.
[6]I am satisfied in the circumstances of this case, that the respondent should be awarded increased costs. This is an intellectual property matter involving sophisticated clients. Where, as here, numerous issues are raised on appeal and the issues involve complex facts and expert evidence, the amount of work required of respondent's counsel justifies increased costs. To the argument that the complexity of this case was no greater than that of most intellectual property cases that come before this Court, I would say that such cases frequently present complex facts and give rise to difficult issues.
[7]The increased costs to be awarded are party-and-party costs. They do not indemnify the successful party for its solicitor-client costs and they are not intended to punish the unsuccessful party for inappropriate conduct.
[8]An award of party-and-party costs is not an exercise in exact science. It is only an estimate of the amount the Court considers appropriate as a contribution towards the successful party's solicitor-client costs (or, in unusual circumstances, the unsuccessful party's solicitor-and-client costs). Under rule 407, where the parties do not seek increased costs, costs will be assessed in accor dance with column III of the table to Tariff B. Even where increased costs are sought, the Court, in its discretion, may find that costs according to column III provide appropriate party-and-party compensation.
[9]However, the objective is to award an appropriate contribution towards solicitor-client costs, not rigid adherence to column III of the table to Tariff B which is, itself, arbitrary. Subsection 400(1) makes it clear that the first principle in the adjudication of costs is that the Court has "full discretionary power" as to the amount of costs. In exercising its discretion, the Court may fix the costs by reference to Tariff B or may depart from it. Column III of Tariff B is a default provision. It is only when the Court does not make a specific order otherwise that costs will be assessed in accordance with column III of Tariff B.
[10]The Court, therefore, does have discretion to depart from the Tariff, especially where it considers an award of costs according to the Tariff to be unsatisfactory. Further, the amount of solicitor-and-client costs, while not determinative of an appropriate party-and-party c ontribution, may be taken into account when the Court considers it appropriate to do so. Discretion should be prudently exercised. However, it must be borne in mind that the award of costs is a matter of judgment as to what is appropriate and not an accounting exercise.
[11]I think this approach is consistent in today's context with the observations of Nadon J. (as he then was) in Hamilton Marine & Engineering Ltd. v. CSL Group Inc. (1995), 99 F.T.R. 285 (F.C.T.D.), at paragraph 22:
I indicated to counsel during the hearing that there was no doubt that, in most cases, the fees provided in Tariff B were not sufficient to fully compensate a successful party. I also indicated to counsel during the hearing that, in my view, the tariff necessarily had to remain the rule and that an increase of the tariff fee was the exception. By that I mean that the discretion given to the Court to increase the tariff amounts pursuant to rule 344(1) and (6) of the Federal Court Rules was not to be exercised lightly. Put another way, the fact that the successful party's legal costs were far superior to the amounts to which that party was entitled under the tariff, was not in itself a factor for allowing an increase in those fees.
[12]One advantage of a lump-sum award of costs is the saving in costs to the parties that would otherwise be incurred in the assessment process. However, a lump-sum award of costs may not be appropriate in all cases. Nor, of course, is any panel of the Appeal Division or prothonotary or judge of the Trial Division bound to award a lump sum of costs merely because that is requested. Nonetheless, I would suggest that it would be good practice for counsel to be prepared to address costs at the conclusion of proceedings in the event the matter is disposed of from the Bench and the Court elects to offer to fix costs on a lump-sum basis at that time.
[13]In the circumstances of this case, and having regard to the submissions of both parties, I would award the respondent party-and-party costs of $25,000, inclusive of fees, disbursements and GST and the costs of this motion, and direct the assessment officer to assess costs accordingly.
Nadon J.A.: I agree.
* * *
[14]Décary J.A. (dissenting in part): This is a motion by the respondent "for increased costs" made pursuant to rule 403 of the Federal Court Rules, 1998 (the Rules). The motion was first submitted to me as the presiding member of the panel which had dismissed the appeal, but for reasons which I will shortly explain, the motion was then brought before the full panel who had heard the appeal. The within reasons were circulated to my colleagues first. In the end, for the reasons written by Rothstein J.A. with which Nadon J.A. agreed, the motion for increased costs is allowed for an amount far exceeding the one I am prepared to grant.
[15]There was a request for an oral hearing of this motion. The Chief Justice, on June 14, 2002, informed counsel that the request would be dealt with once the parties have filed their respective records. Having read the respective records, I have reached the conclusion that an oral hearing is not warranted.
[16]On January 25, 2001, McKeown J. dismissed the application by Consorzio del Prosciutto di Parma (Consorzio) under section 57 of the Trade-marks Act [R.S.C., 1985, c. T-13] for expunging from the Register of Trade-marks Registration No. 179,637 for the mark "Parma", owned by Maple Leaf Meats Inc. (Maple Leaf). In his reasons for judgment, reported at [2001] 2 F.C. 536, McKeown J. asked the parties to make written submissions should they not agree on costs.
[17]On February 21, 2001, Consorzio filed a notice of appeal with respect to the January 25, 2001 order. The Appeal Court file is A-85-01.
[18]Subsequently, the parties could not agree on costs and made written submissions. On May 2, 2001, McKeown J. awarded the "costs to the Respondent (Maple Leaf) on a party-and-party basis, to be assessed at the high end of Column 3". On May 31, 2001, Consorzio filed a notice of appeal, Appeal Court file A-334-01. Maple Leaf did not file a cross-appeal.
[19]On June 27, 2001, in file A-85-01, Létourneau J.A. ordered Consorzio to "pay into Court the sum of $8500 as security for the Respondent's [Maple Leaf] costs of the appeal".
[20]Both appeals were heard on May 1, 2002. The Court disposed of both from the Bench after hearing each side. The appeal in file A-85-01 was "dismissed with costs" [(2002), 18 C.P.R. (4th) 414 (F.C.A.)]. The appeal in file A-334-01 was dismissed without costs.
[21]On July 5, 2002, Maple Leaf made the within motion in file A-85-01 seeking:
An Order pursuant to Rule 403 . . . allowing the Respondent's costs in excess of Tariff B of the Rules, in the form of a lump sum amount of $40,000.00 inclusive of fees and disbursements.
Leave was also sought to extend the time limit set out in paragraph 403(1)(a) for the filing of the motion. The extension of time was not contested by Consorzio and I am prepared to grant it.
[22]In support of the motion, the affidavit of one of Maple Leaf's counsel alleged the following:
| 3. The Respondent is asking that the Court grant a lump sum award of $40,000.00 inclusive of fees and disbursements for the Respondent's costs, an award which is a reasonable assessment of the Respondent's costs on a party-and-party scale. |
| 4. Attached as Exhibit B to my affidavit is a draft Bill of costs which was prepared by my law clerk, Mr. Enis Davis, created from the invoices which my firm issued to the Respondent. The draft Bill of Costs has been prepared to show the actual fees incurred according to the categories of costs anticipated under the Tariff, as compared to the costs allowed under Columns III and V of Tariff B. |
| 5. The total fees and disbursements, including GST, have been calculated to be $80,707.59(Cdn). The Respondent is requesting a lump sum of $40,000.00(Cdn). |
| 6. On July 20, 2001, the Consorzio tendered into Court the amount of $8500.00 as security for costs in this matter. This amount matches an award of costs based on Column III of Tariff B, or 10.5% of the actual fees and disbursements incurred by the Respondent. |
| 7. As the facts set out below describe in greater detail, an award of costs in the order of $40,000.00 is a reasonable party-and-party award in this case. |
Role of Counsel
| 8. Counsel of record for Maple Leaf is Gowling Lafleur Henderson LLP. The principal lawyers were myself and Kelly Gill. A substantial amount of work was conducted in 2001 in respect of the preparation, research and filing of the Memorandum of Fact and Law. The bulk of the work was conducted in 2002 in respect of the preparation for the hearing of the appeal. |
| 9. I played an active role as the primary counsel for Maple Leaf in the Appeal and in the supervision of the preparation of the Memorandum of Fact and Law and legal research. My billing rate was $300.00 per hour in 2001 and $350.00 per hour in 2002. |
| 10. Mr. Gill was also involved with the supervision and preparation of the Memorandum of Fact and Law, legal research and appeal issues relating to the extensive survey evidence which was advanced on appeal. Mr. Gill's billing rate was $420 in 2002. |
Number of Issues Raised on Appeal
| 11. The Consorzio raised 12 discreet issues on appeal. A copy of the Notice of Appeal is attached as Exhibit C to this my affidavit. |
| 12. Given the number of issues raised on Appeal, each warranted a full response from Maple Leaf and the preparation for the appeal hearing. |
Complexity of Issues
| 13. The Appeal raised complex questions of fact and, in particular, complex matters relevant to survey evidence. The survey evidence consisted of three expert witnesses involving technical matters of survey methodology, examination on the questionnaires, etc. |
Legal Issues not Abandoned at Appeal
| 14. No legal issues were abandoned on appeal, as is reflected on the numerous matters raised in the Notice of Appeal. |
The Result
| 15. The Court found in favour of the Respondent by dismissing the Appeal with costs. |
[23]On July 15, 2002, Consorzio filed its response. It comes as no surprise that it asked that the motion be dismissed with costs.
[24]In the course of these reasons, I will be referring to rule 397, subsections 400(1), 400(3), 400(4), 400(5) and 400(6), rules 403 and 407. They read as follows:
397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
. . .
400. (1) The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.
. . .
(3) In exercising its discretion under subsection (1), the Court may consider
(a) the result of the proceeding;
(b) the amounts claimed and the amounts recovered;
(c) the importance and complexity of the issues;
(d) the apportionment of liability;
(e) any written offer to settle;
(f) any offer to contribute made under rule 421;
(g) the amount of work;
(h) whether the public interest in having the proceeding litigated justifies a particular award of costs;
(i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;
(j) the failure by a party to admit anything that should have been admitted or to serve a request to admit;
(k) whether any step in the proceeding was
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(l) whether more than one set of costs should be allowed, where two or more parties were represented by different solicitors or were represented by the same solicitor but separated their defence unnecessarily;
(m) whether two or more parties, represented by the same solicitor, initiated separate proceedings unnecessarily;
(n) whether a party who was successful in an action exaggerated a claim, including a counter-claim or third party claim, to avoid the operation of rules 292 to 299; and
(o) any other matter that it considers relevant.
(4) The Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs.
(5) Where the Court orders that costs be assessed in accordance with Tariff B, the Court may direct that the assessment be performed under a specific column or combination of columns of the table to that Tariff.
(6) Notwithstanding any other provision of these Rules, the Court may
(a) award or refuse costs in respect of a particular issue or step in a proceeding;
(b) award assessed costs or a percentage of assessed costs up to and including a specified step in a proceeding;
(c) award all or part of costs on a solicitor-and-client basis; or
(d) award costs against a successful party.
. . .
403. (1) A party may request that directions be given to the assessment officer respecting any matter referred to in rule 400,
(a) by serving and filing a notice of motion within 30 days after judgment has been pronounced; or
(b) in a motion for judgment under subsection 394(2).
(2) A motion may be brought under paragraph (1)(a) whether or not the judgment included an order concerning costs.
(3) A motion under paragraph (1)(a) shall be brought before the judge or prothonotary who signed the judgment.
. . .
407. Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B.
[25]The motion, as I have mentioned previously, is made under rule 403. Yet, the order sought is not that the Court give directions to the assessment officer, but that the Court allow "the Respondent's costs in excess of Tariff B of the Rules, in the form of a lump sum amount of $40,000.00 inclusive of fees and disbursements". The motion, it seems to me, is akin to a motion for reconsideration under rule 397, to be made to the Court "as constituted at the time the order was made". Such a motion would fail because the grounds alleged by the respondent do not come within those enumerated at rule 397. As was noted by Jackett C.J. in Smerchanski v. Minister of National Revenue, [1979] 1 F.C. 801 (C.A.), at page 803:
. . .where this Court gives judgment for costs to be taxed, it cannot subsequently substitute a lump sum unless by way of reconsideration of the judgment for a reason that falls within one of the classes of cases to be found in Rule 337(5) or (6). This is not such a case.
[26]I am, however, prepared to consider this motion as being one made under subsection 403(3) for directions to the assessment officer.
Jurisdiction
[27]It flows from rule 407 and subsection 400(5) that any order of this Court granting "costs" without qualification is implicitly an order granting costs on a party-and-party basis, to be assessed in accordance with column III of Tariff B.
[28]Therefore, any motion under rule 403 for directions to be given to the assessment officer that purports to modify the basis for assessment and/or the applicable column is in reality a motion seeking to vary the order of the Court. Since the "directions" would, for all practical purposes, modify the order of the Court, I am inclined to believe that the directions must be given by the same panel that made the original order.
[29]Subsection 403(3) directs that motions for directions "be brought before the judge or prothonotary who signed the judgment". That Rule is obviously intended for the Trial Division. It ensures that the motion will be disposed of by the person who knows best the circumstances of the case, i.e., as the case may be, the prothonotary or the judge who heard the case and who, naturally, signed the judgment.
[30]With respect to the different view held in passing--the issue does not appear to have been raised before him--by my brother Strayer J.A., then sitting in chambers, in Eli Lilly and Co. v. Novopharm Ltd., [1999] 2 F.C. 175 (C.A.), at page 184, I am not prepared to interpret subsection 403(3), in the context of a judgment rendered by the Court of Appeal, in such a way as to confer jurisdiction on the judge "who signed the judgment", i.e. to the presiding member of the panel, rather than to the full panel.
[31]Rule 403 is concerned with directions "respecting any matter referred to in rule 400". Rule 400 deals with the discretionary power of "the Court" over the amount and allocation of costs. An award of costs in an appeal on the merits (as opposed to an award made on a motion in the course of an appeal) is very much a part of the judgment which is made by the Court, i.e. by the panel hearing the appeal. Any variation of the award is a variation of the judgment and a single judge has no jurisdiction (unless a statute or perhaps the rules say otherwise) to vary a judgment of the Court.
[32]I appreciate that pursuant to rule 2, "Court", "in respect of a motion, includes a single judge of the Court of the Appeal" and that it can be argued that a motion for directions under rule 403 can be ruled on by a single judge. Where, the argument goes, the Rules wanted a full panel to hear and decide a motion, they said it in express terms, as in rule 397 (reconsideration).
[33]I am not prepared to read rule 397 in this fashion. The words "as constituted at the time the order was made" were not included so as to require that the motion be heard by a panel of three judges, but they were included so as to require that the panel of three judges be the one that had heard the appeal.
[34]Neither am I prepared to give to the definition of "Court" in rule 2 such an absolute effect. The Rules have to be interpreted in context. Where the context suggests that a motion should be heard by a panel of three judges, common sense should prevail. Rule 399, for example, which deals with the setting aside or variance of an order, does not require the motion to be brought before a panel of three judges. Yet, no one would suggest a judge can, alone, set aside or vary a judgment of the Court of Appeal. Clearly, in my view, where the Rules fail to distinguish between the Trial Division and the Court of Appeal, any literal interpretation which leads to a fundamental misunderstanding of the appeal process should be avoided.
[35]To find otherwise would lead to an awkward situation. When the Court of Appeal omits, for example, to rule on costs even though they were sought, a party would have the option of either bringing a motion for reconsideration under rule 397 before the same panel or bringing a motion under rule 403 before the presiding member of the panel. This simply cannot be.
[36]It is of interest to note that, under the former Rules [Federal Court Rules, C.R.C., c. 663], Rule 344(7) [as am. by SOR/87-221, s. 2] contained a provision that dealt specifically with motions for directions in the Court of Appeal. It read as follows:
Rule 344. (1) . . .
(7) . . . An application under this subsection in the Court of Appeal shall be made before the Chief Justice or a judge nominated by him, but either party may apply to a court composed of at least three judges to review the decision of the Chief Justice or the judge nominated by him.
[37]Rule 344(7) was replaced in the new Rules by subsection 403(3), supra, which makes no reference to the Court of Appeal. It does not appear from the minutes of the Rules Committee that the attention of the Committee was drawn to the issue of quorum. Had the Committee examined the issue, I have no doubt that it would have added, at the end of subsection 403(3), words such as: ", or, in the Court of Appeal, before the Court as constituted at the time the order was made".
[38]I am therefore in total agreement with the following view expressed by Denault J.A., sitting as a single judge, in Sim & McBurney v. Buttino Investments Inc. (1997),77 C.P.R. (3d) 512 (F.C.A.), at page 516, where he was examining former Rule 344:
I am of the view that "the Court" in Rule 344(1) to (7), insofar as the case is heard before the Appeal Division of this Court, refers to the panel as constituted of three judges. Jurisprudence has in fact interpreted this rule, with respect to cases heard before the Trial Division, as referring to the Trial Judge. (See A/S Ornen v. "Duteous" (The), [1987] 3 F.C. D-10; Poudrier v. The Queen (1984), 27 A.C.W.S. (2d) 7 (F.C.T.D.); Eastern Can. Towing Ltd. v. "Algobay" (The), [1980] 2 F.C. 366 (T.D.).) Common sense calls for such an interpretation: the panel, constituted of three judges, is the one who knows the circumstances of the case and of the matters set out in subsection 344(3) that are to be taken into account in awarding costs as well as in determining their quantum.
[39]Should there be any difficulty in reconstituting the panel, the Chief Justice can always, in the interest of the administration of justice, designate a panel differently constituted (see rules 3, 56; subsection 16(2) of the Act [Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 2)]).
The merit of the motion
[40]Counsel for the respondent has filed an affidavit wherein it is alleged that the total fees and disbursements, in appeal, including taxes, amount to approximately $80,000, approximately $50,000 of which was devoted (as appears from clarifications since obtained from counsel) to the preparation of the appeal and approximately $14,000 of which was devoted to the memorandum of fact and law.
[41]A quick look at the recent history of Tariff B is warranted at this stage.
[42]Prior to 1995, the Tariff consisted of fixed maximum values for specific services. That Tariff had led Chief Justice Jackett to make these comments in Smerchanski (supra), at pages 805-806:
. . . it does seem to be clear that party and party costs are not designed to constitute full compensation to the successful party for his solicitor and client costs. . . .
. . . It must be obvious that such items are so low in relation to what is involved in a very substantial proportion of the matters that come before the Court that they are not designed to provide complete compensation to the successful party for the costs incurred by him in the litigation. (Indeed, what is sought in this case is an increase that would still leave the successful party largely uncompensated for solicitor and client costs.) If Federal Court party and party costs are not designed to provide full reimbursement, as it seems to me, what is intended is that they be made up of the completely arbitrary amounts fixed by or in accordance with the rules subject to variations (where authorized) based on factors arising out of the conduct of the particular proceeding. As it seems to me, the vague basis put forward on behalf of the respondent would put the Court in the position, in a very substantial proportion of proceedings, of weighing imponderable factors, or factors that are not capable of determination, with a view to making an allowance of an undefined portion of solicitor and client costs. In my view, such an approach is not acceptable as a basis for exercising a judicial discretion under Tariff B and would open the way for an unseemly complication of our practice.
[43]On September 1, 1995, by Amending Order No. 17, SOR/95-282, s. 5, the 5-column structure of Tariff B came into effect, alleviating perhaps the concerns expressed earlier by Chief Justice Jackett. The Court as well as taxing officers were given more latitude under Tariff B, through both the use of five columns and the establishment within each column of a wide range of units the value of which was initially set at $100 each. That value was to be reviewed every year by the Chief Justice according to a specific formula.
[44]Tariff B was again amended in 1998 with the coming into force of the "new" Federal Court Rules, 1998 (SOR/98-106). The 5-column structure was maintained, the value of the units remained at $100 (it has since been increased to $110 on April 1, 2001), and the items provided for were substantially the same as in 1995.
[45]Throughout these changes, the Rules pertaining to costs remained substantially the same as they are now codified in Part 11.
[46]The adoption of the new Tariff B, in 1995, coupled with the slight changes made to it in 1998, reflect, in my view, a clear intention to move very cautiously when setting the financial hurdles parties might expect to face when seeking remedy in the Federal Court of Canada. One may safely start with the proposition that the intent of rule 407 (and of former Rule 346) was to reaffirm, as a general principle, that bills of costs are not meant to compensate all the costs incurred by a litigant. Members of the Rules Committee, in 1998, were well aware of the fact that counsel fees set out in 1995 in Tariff B did not, in most cases, reflect the actual fees charged to a client. The issue was discussed and a deliberate choice was made not to dissuade litigation by exposing litigants, in normal circumstances, to hefty costs. One must be reminded that in most instances in the Federal Court, the litigants are the State on the one hand and private citizens on the other.
[47]This intent is also reflected in the discretion vested in the Court, in paragraph 400(6)(c), to award costs on a solicitor-and-client basis and in the keeping of the five columns in Tariff B, the last two of which provide for above-average bills of costs. The Supreme Court of Canada made it clear that awarding costs on a solicitor-and-client basis (which are, for all practical purposes, the costs actually incurred by a litigant) remains exceptional and is generally associated with reprehensible, scandalous or outrageous conduct on the part of one of the parties (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[48]The principles applicable to awards of increased costs were recently discussed by this Court in Wihksne v. Canada (Attorney General), 2002 FCA 356; [2002] F.C.J. No. 1394 (C.A.) (QL), where I made the following observations, at paragraph 11:
The appellant seeks full compensation for the costs incurred to date in the Federal Court. I have not been convinced that there are valid reasons to derogate from Rule 407 which states the general principle that costs are to be awarded in accordance with column III of the table to Tariff B. As Wetston J. said in Apotex Inc. v. Wellcome Foundation Ltd. (1998) 159 F.T.R. 233, "an important principle underlying costs is that an award of costs represents a compromise between compensating a successful party and not unduly burdening an unsuccessful party." This decision was confirmed at (2001) 199 F.T.R. 320 (F.C.A.). Tariff B, admittedly, is already obsolete in many instances. But absent special considerations (see Rule 400(3)), the Court should be reluctant to attempt to rewrite Tariff B--a task better left to the Rules Committee--and to embark into a factual determination of costs which is better left in the hands of specialized taxing officers. I make mine these words of Nadon J., then sitting in the Trial Division, in Hamilton Marine & Engineering Ltd. v. CSC Group Inc. (1995) 99 F.T.R. 285:
I indicated to counsel during the hearing that there was no doubt that, in most cases, the fees provided in Tariff B were not sufficient to fully compensate a successful party. I also indicated to counsel during the hearing that, in my view, the tariff necessarily had to remain the rule and that an increase of the tariff fee was the exception. By that I meant that the discretion given to the Court to increase the tariff amounts pursuant to rule 344(1) and (6) of the Federal Court Rules was not to be exercised lightly. Put another way, the fact that the successful party's legal costs were far superior to the amounts to which that party was entitled under the tariff, was not in itself a factor for allowing an increase in those fees.
[49]In the case at bar, the factors listed in subsection 400(3) and relied upon by counsel for the respondent are largely inapplicable. It is true that 12 issues were raised in the notice of appeal, but they were either abandoned or regrouped into four headings in the memorandum of fact and law filed by the appellant. The issues raised were typical of those argued in trade-mark appeals and none of them involved particularly complex issues of fact and law. The appeal was conducted in the usual manner and no allegation is made that it was conducted improperly by counsel for the appellant. The fact that costs were assessed at the upper end of column III in the Trial Division is obviously relevant but in no way determinative with respect to the process in the Court of Appeal. That fact, in any event, does not help the respondent, as it claims in appeal much more than the upper end of column III and it is unlikely that more work was required in appeal than it was at trial.
[50]The fact that the respondent won on appeal is a factor that militates in favour of costs being awarded to it, not in favour of higher costs. There was nothing unusual, here, in the result achieved by the respondent.
[51]The fact that the judgment was delivered from the Bench after hearing from both sides for a day and that the reasons for judgment simply endorsed those of the Trial Judge is indicative of the quality of these reasons, not of the frivolity or weakness of the appeal.
[52]The role of counsel is described in vague terms. That "a substantial amount of work" was conducted does not necessarily lead to the conclusion that all the work done was necessary or that the losing party should automatically be made liable for the billing rates the winning party was prepared to pay to its own counsel. While I do not wish to second-guess counsel as to the propriety of their work, I cannot blindly accept their general statement nor impose on the other party the payment of a substantial amount of costs with respect to work the nature and necessity of which remain largely unsubstantiated.
[53]I am prepared, however, to recognize that the work done in preparation for the hearing of the appeal should be taken into account. Tariff B, inexplicably, has omitted, in 1995 and again in 1998, this item which appeared in former Tariff B under the heading 1(h) [as am. by SOR/87-221, s. 8]: "for preparation for a trial in the Trial Division or a hearing in the Court of Appeal, for each two days of the actual trial or hearing or part thereof, up to $250" (my emphasis). I am authorized, under item 27, to recognize "such other services" that have been rendered by counsel and I am allowing, for the preparation of the hearing of the appeal, a total of seven units, which is more than the numbers set out in the Tariff but which corresponds to the upper end of the number of units allowed in item 19 of column III for the memorandum of fact and law, an item comparable, in my view, to that of preparation for the hearing of the appeal.
[54]As I have not understood counsel for the appellant to object to an assessment of costs on appeal on the basis of the upper end of column III--as was done in the Trial Division--and as that assessment leads to a round figure of $8,500, inclusive of disbursements and taxes, I have no problem agreeing with that figure. I would add to it a round figure of $1,500 to take into account the preparation for the hearing of the appeal as well as the presentation of the within motion, resulting in a total award of $10,000, inclusive of costs and disbursements.
[55]Tariff B gives the Court enough margin to manoeuver in the vast majority of cases. The Court always retains, of course, its discretion under subsection 400(4) to award "a lump sum in lieu of, or in addition to, any assessed costs", but such discretion should be exercised in exceptional cases only and in a manner that can be proportionally related to the Tariff. The case, here, has not been shown to be exceptional.
[56]It may be that special tariffs should be devised for specialized areas where both sides are prepared to go to court at any cost and to literally relinquish control over their counsel fees. But we are not there yet and until we get there, should we get there, prudence dictates a conservative approach. Costs, in this Court, have never been an issue of much controversy since the introduction, in 1995, of the 5-column tariff. To paraphrase the words of Chief Justice Jackett in Smerchanski, I would rather keep a practice that has served the Court and the litigants well than move into an era of arbitrary distribution by the Court of important lump sums, based on a contrived proportion of the real costs allegedly incurred, thereby paving the way "for an unseemly complication of our practice".
[57]Arbitrary use of the Court's discretion would run contrary to the principle of judicial comity. The attribution of lump sums far exceeding the amounts permissible under Tariff B in order to compensate for part of the actual costs incurred by a litigant in a non-exceptional case is likely to lead to an undermining of the Tariff, which in turn is likely to lead to unpredictability, arbitrariness and in the end unfairness in costs awards. Without the guidance provided by the Tariff, litigants would be confused and uncertain about the financial costs of litigation. Such uncertainty should not be taken lightly. The ability to estimate the cost of litigation plays an important role in one's access to the courts. As I noted in Wihksne (supra), any substantial change in the practice of the Court should be left in the hands of the Rules Committee. The Committee, after all, is a statutory body (section 45.1 [as enacted by S.C. 1990, c. 8, s. 13] of the Federal Court Act) composed of members of the Court and of the bar and the Attorney General of Canada, whose duty includes, at paragraph 46(1)(g), that of "awarding and regulating costs in the Court".
[58]In the end, therefore, I would grant in part the motion "for increased costs" and I would give directions to the assessment officer, under rule 403, to assess the costs on appeal in the form of a lump sum of $10,000 inclusive of fees and disbursements, including those related to the within motion for directions.