A‑448‑05
2007 FCA 135
Specialized Bicycle Components Canada, Inc. (Applicant)
v.
Groupe Procycle Inc. and Raleigh Canada Limited (Respondents)
Indexed as: Specialized Bicycle Components Canada, Inc. v. Groupe Procycle Inc. (F.C.A.)
Federal Court of Appeal, Stinson A.O.—Vancouver, April 3, 2007.
Practice — Costs — Respondents seeking costs for motions to extend time — Orders on motions silent as to costs — Federal Courts Rules, r. 410(2) providing unless Court ordering otherwise, costs of motion to extend time borne by moving party — However, Court practice requiring visible order moving party pay costs — Respondents’ costs relating to motions to extend time disallowed.
This was an assessment of the respondents’ bill of costs, presented after the applicant had discontinued its application for judicial review of a decision of the Canadian International Trade Tribunal. Subsection 410(2) of the Federal Courts Rules provides that unless “the Court orders otherwise, the costs of a motion for an extension of time shall be borne by the party bringing the motion.” The issue was whether the applicant was required to pay the respondents’ costs for the motions to extend time that it had brought, as the Court had not ordered otherwise (the orders on the motions were silent as to costs).
Held, the respondents were not entitled to costs for the motions to extend time; their bill of costs was assessed and allowed at $1,239.80.
Various provisions of the Federal Courts Rules and Federal Courts Immigration and Refugee Protection Rules were considered. Relevant authorities were also considered, including Halsbury’s Laws of England. An acceptable reading of subsection 410(2) would be that it imposes a default obligation on the moving party to pay the costs of the responding party without the necessity of a visible order to do so. Unfortunately the practice of the Court to date indicates that such an order is necessary. The respondents’ costs relating to the motions to extend time were disallowed.
statutes and regulations judicially
considered
Federal Courts Immigration and Refugee Protection Rules, SOR/93‑22 (as am. by SOR/2005‑339, s. 1), rr. 4(1) (as am. idem, s. 3), 22 (as am. by SOR/2002‑232, s. 11).
Federal Courts Rules, SOR/98‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 293, 299.41(1) (as enacted by SOR/2002‑417, s. 17), 400 (as am. idem, 25(F)), 402, 407, 408(3), 410(2), 465(3), 472(f), 494, Tariff B, items 2, 5, 21(a), 26, 28, Columns III, IV.
Privacy Act, R.S.C., 1985, c. P‑21, s. 52(1).
cases judicially considered
applied:
Nature’s Path Foods Inc. v. Country Fresh Enterprises Inc., 2007 FC 116; Air Canada v. Canada (Minister of Transport), [2000] F.C.J. No. 101 (T.D.) (QL).
considered:
Maison des Pâtes Pasta Bella Inc. v. Olivieri Foods Ltd. (1999), 86 C.P.R. (3d) 356; 163 F.T.R. 252 (F.C.T.D.); Merck & Co. v. Apotex Inc. (2006), 53 C.P.R. (4th) 69; 2006 FC 631; affd (2006), 276 D.L.R. (4th) 686; 55 C.P.R. (4th) 1; 354 N.R. 51; 2006 FCA 323; See You In‑Canadian Athletes Fund Corp. v. Canadian Olympic Committee, 2006 FC 740; Richards v. M.N.R. (2005), 2005 DTC 5155; 268 F.T.R. 29; 2005 FC 24; Maison des Pâtes Pasta Bella Inc. v. Olivieri Foods Ltd., [1998] F.C.J. No. 1171 (T.D.) (QL); Cross‑Canada Auto Body Supply (Windsor) Ltd. v. Hyundai Auto Canada, a division of Hyundai Motor America, 2005 FC 1266; Canadian Olympic Assn. v. Olymel, Société en Commandite (2001), 11 C.P.R. (4th) 378; 183 F.T.R. 290; 2001 FCT 105; Mercantile Lighterage Company, Limited (In re), [1906] 1 Ch. 491; Adlington v. Conyngham, [1898] 2 Q.B. 492.
referred to:
Balisky v. Canada (Minister of Natural Resources), 2004 FCA 123; Aird v. Country Park Village Properties (Mainland) Ltd., 2005 FC 1170; Janssen‑Ortho Inc. v. Novopharm Ltd. (2006), 57 C.P.R. (4th) 58; 2006 FC 1333; Morris v. Canada, 2005 FCA 437.
authors cited
Halsbury’s Laws of England, 4th ed., Reissue, Vol. 37. London: Butterworths, 2001.
Saunders, Brian J. et al. Federal Courts Practice 2007. Toronto: Thomson Carswell, 2006.
ASSESSMENT of the respondents’ bill of costs. The respondents were not entitled to costs pursuant to subsection 410(2) of the Federal Courts Rules of motions to extend time.
appearances:
Paul K. Lepsoe for applicant.
Keith D. Cameron and Martin G. Masse for respondents.
solicitors of record:
McFarlane Lepsoe, Ottawa, for applicant.
Lang Michener LLP, Ottawa, for respondents.
The following are the reasons for assessment of costs rendered in English by
[1]Stinson, A.O. : The applicant discontinued its application for judicial review (addressing a decision by the Canadian International Trade Tribunal concerning bicycle imports). I issued a timetable for written disposition of the assessment of the respondents’ bill of costs, presented further to Rule 402 [of the Federal Courts Rules, SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2)].
I. The Respondents’ Position
[2]The respondents referred to subsection 410(2) of the Rules providing that, unless “the Court orders otherwise, the costs of a motion for an extension of time shall be borne by the party bringing the motion”, and argued further to Maison des Pâtes Pasta Bella Inc. v. Olivieri Foods Ltd. (1999), 86 C.P.R. (3d) 356 (F.C.T.D.) (Maison des Pâtes) that, as the Court has not ordered otherwise, the applicant must pay the respondents’ costs associated with four different motions to extend time, regardless of the outcome of said motions. Generally relative to paragraph 400(3)(i) of the Rules (conduct unnecessarily lengthening proceedings), the record justifies increased costs further to the applicant’s conduct, i.e. delay tactics so flagrant as to elicit a notice of status review to show cause for delay. Relative to paragraph 400(3)(g) (amount of work), the record indicates that the applicant’s conduct caused excessive work for the respondents, i.e. considerable correspondence addressing submissions and procedural disagreements beyond the scope of motion records. Relative to paragraph 400(3)(e) (offer to settle), the respondents’ good faith offer to settle costs at $9,150.50, less than one‑half of the actual amount incurred, was met with the applicant’s unreasonable counteroffer of only $300. These various factors justify the respondents’ claimed costs of $9,487.85.
[3]The respondents argued that the applicant’s cited authorities address circumstances in which the Rules are silent on costs and are therefore irrelevant given the mandatory language of subsection 410(2) dictating the costs consequences associated with motions to extend time. The applicant’s submission, i.e. that subsection 410(2) is not applicable because the requests for time extensions were coupled with requests for other heads of relief, is not correct in law because the real purpose of each motion was the time extension. It is nonsense to suggest that a litigant can ignore filing deadlines stipulated by the Rules, put opposing litigants to the costs of responding to the consequent motions and then avoid the costs consequences of subsection 410(2) simply by adding an additional prayer for relief to a motion to extend time. As well, the applicant’s cited authorities are irrelevant because they do not address the costs consequences associated with Rule 410(2). Counsel fee item 5 [Tariff B of the Rules] does not require that the Court make an order allowing the costs to oppose motions.
II. The Applicant’s Position
[4]Generally, the applicant asserted that the only formal activities in the record, apart from the applicant’s instituting document and the respondents’ notice of appearance, were the applicant’s notices of motion. The respondents did oppose them and the relief sought was generally granted, but without any costs being awarded for any of them. On that basis, the applicant had offered a nominal amount of $300, there being nothing from the respondents justifying a higher entitlement, for discon-tinuance in lieu of assessed costs. The respondents’ submissions acknowledged that most of their costs related to the applicant’s various motions. Nothing should be allowed for item 2 [Tariff B of the Rules] (application record) because this proceeding had not advanced far enough for the filing by either side of application records and memoranda of fact and law on the merits of the judicial review, which was discontinued before it was set down for hearing. The applicant asserted that the need for motions to regularize service on foreign entities did not equate to delay tactics and noted the lack of evidence of alleged delaying conduct. The federal government abandoned the decision in dispute, quite apart from the application for judicial review.
[5]The applicant noted that its ex parte notice of motion dated October 11, 2005 for substitutional service on several manufacturing entities in Asia and on certain foreign governments included a request for an extension of time beyond the available time in the Rules and was granted by order silent on costs. Its notice of motion dated December 12, 2005 for a delay in filing the application record pending certain other relief relating to consolidation of proceedings and for a further extension of time for service on certain foreign governments (subjects of the earlier motion) was largely granted by order silent on costs. The respondents’ submissions in opposition had asked for costs of said motion. Its notice of motion dated February 22, 2006, for eight distinct heads of relief, i.e. consolidated hearing with two other court files and related procedural relief, the last of which was a further extension of time for service on the foreign governments, was largely denied by order silent on costs. Its notice of motion dated April 27, 2006, for substitutional service on the Government of Taiwan and a further related extension of time for service was granted by order silent on costs.
[6]The applicant referred to a number of authorities indicating that costs are not assessable further to orders silent on costs, i.e. Balisky v. Canada (Minister of Natural Resources), 2004 FCA 123, at paragraph 6; and Aird v. Country Park Village Properties (Mainland) Ltd., 2005 FC 1170, at paragraph 10, (plus a number of others relying on Balisky and Aird). Other authorities have held that an interlocutory order silent on costs means that no costs have been granted to a party, i.e. Merck & Co. v. Apotex Inc. (2006), 53 C.P.R. (4th) 69 (F.C.) affirmed (2006), 276 D.L.R. (4th) 686 (F.C.A.); and Janssen‑Ortho Inc. v. Novopharm Ltd. (2006), 57 C.P.R. (4th) 58 (F.C.). Subsection 410(2) of the Rules does not negate this latter statement of principle. Rather, it simply provides that, relative to applications for extensions of time, the Court should not apply the general principle that costs follow the event (See You In‑Canadian Athletes Fund Corp. v. Canadian Olympic Committee 2006 FC 740 (See You)). In any event, subsection 410(2) does not apply because each motion was not restricted to a single request for an extension of time, but rather each also sought other distinct and more significant heads of relief.
[7]The applicant argued alternatively that, if subsection 410(2) is found to apply to any of these motions, Maison des Pâtes, above, does not stand for the proposition advanced by the respondents, i.e. as the Court has not ordered otherwise, the applicant must pay the respondents’ costs associated with each motion. Rather, the Court at most (paragraphs 13‑15 inclusive) indicated that the moving party is not by default entitled to costs. Perhaps the Court should have awarded subsection 410(2) costs to the respondents here. Perhaps the Court felt that the respondents’ conduct mitigated against such awards. The remedy for the respondents might have been appeals or motions to vary, but certainly per Balisky and Aird, above, they cannot obtain such relief via this assessment of costs. The applicant’s settlement offer of $300 for costs exceeds any entitlement, including disbursements, available in the tariff for the respondents’ notice of appearance. Accordingly, as this assessment of costs was unnecessary, the respondents should not get item 26 [Tariff B of the Rules] (assessment) costs and instead the applicant should get its costs further to subsection 408(3) of the Rules, i.e. $434.60 ($360.00 for item 26 + $74.60 for photocopies and GST).
III. Assessment
[8]Subsequent to the materials filed further to my timetable, counsel for the applicant expressed concerns about the accuracy of summaries of its materials in the respondents’ submissions. Although the correspondence from both sides refers to a decision of mine, i.e. Morris v. Canada, 2005 FCA 437, which could be characterized as indicative of a predisposition on my part, I have not summarized their respective positions in this correspondence as the analysis below represents the first occasion in which subsection 410(2) has been in issue before me. I think that the phrasing of subsection 410(2), which reads that unless “the Court orders otherwise, the costs of a motion for an extension of time shall be borne by the party bringing the motion”, could give rise to certain diverse scenarios.
[9]Assuming that the term “costs of a motion” does not contain restrictive language precluding the liability of the moving party for the costs of the opposing party (the responding motion party), the sense of said term could be inclusive of the costs for both sides. Subsection 400(1) of the Rules [as am. by SOR/2002-417, s. 25(F)] provides that the Court has “full discretionary power over . . . allocation of costs and the determination of by whom they are to be paid.” The case law generally requires that the Court exercise its broad subsection 400(1) discretion further to the principle that costs follow the event. The balance of rule 400 does not modify or restrict said subsection 400(1), but it does clarify certain areas of jurisdiction. However, subsection 410(2) could be said to restrict or modify the Court’s broad subsection 400(1) discretion by presuming the result for the Court, although leaving it open for the Court to depart from said presumed result. Another scenario is that subsection 410(2), apart from its residual discretion for the Court to order otherwise, completely usurps the Courts subsection 400(1) discretion, meaning that the moving party must by default pay, regardless of outcome, the costs of the responding motion party (this is essentially the respondents’ position here). Another scenario and assuming that subsection 410(2) refers only to the moving party’s costs, is that, apart from its residual discretion, subsection 410(2) precludes the Court from ordering that the responding motion party pay the moving party’s costs. Assuming that the circumstances of an extension of time are generally so straightforward as to not warrant their own rule apart from the broad jurisdiction already in subsection 400(1), subsection 410(2) could function to directly rebut the presumption that costs follow the event. It could be that the drafters of the rule felt that a strong statement of principle was necessary to account for frequent circumstances in which the Court would be inclined in the interests of justice to grant extensions, but free of the binding case law for costs weighted against a responding motion party having no real control over the underlying circumstances giving rise to the motion.
[10]A point of comparison of the term “costs forthwith” in rule 402 (payable to the party against whom a proceeding has been discontinued) with the term “costs of a motion” in subsection 410(2) is that both rules permit the Court to order otherwise. An apparent dissimilarity is that rule 402, although not specifically referring to the discontinuing party, clearly makes said party responsible for paying the costs of the other side. A visible order of the Court is not a prerequisite for assessment of those costs. Subsection 410(2) mentions only one side, i.e. the moving party, and is silent as to the other side, i.e. the responding motion party. That is, subsection 410(2), compared to rule 402 and the notion of the discontinuing party, is more obscure relative to the notion of the liability or responsibility of the moving party to pay the costs of the responding motion party.
[11]These scenarios are complicated by considering them from the perspective of other rules on costs additional to subsection 400(1). For example, rule 22 [as am. by SOR/2002-232, s. 11] of the Federal Courts Immigration and Refugee Protection Rules [SOR/93-22 (as am. by SOR/2005-339, s. 1)] (the Immigration Rules) provides that no “costs shall be awarded to or payable by any party in respect of an application . . . under these Rules unless the Court, for special reasons, so orders.” This seems to be an unambiguous provision addressing both sides and it includes language, more restrictive however than rule 402 and subsection 410(2), permitting the Court to do otherwise. Of interest is the editorial note in Brian J. Saunders et al., Federal Courts Practice 2007, (Toronto : Thomson Carswell, 2006), at page 1124, stating that “Rule 22 displaces the broad discretion as to costs under rule 400 of the Federal Courts Rules.” Subrule 4(1) [as am. by SOR/2005-339, s. 3] of the Immigration Rules provides that “except to the extent that they are inconsistent with . . . these Rules, Parts 1 . . . and 11. . . of the Federal Courts Rules apply” I do not read subrule 4(1) as making the operation of rule 400 (Federal Courts Rules) and rule 22 (Immigration Rules) relative to one another different from the operation of rules 400 and 402 (Federal Courts Rules) relative to one another or even rule 400 and subsection 410(2) relative to one another. That is and with respect, I am not convinced that it could be said that rule 22 [of the Immigration Rules], rule 402 and subsection (2) [of the Federal Courts Rules] completely displace the broad discretion as to costs under rule 400 of the Federal Courts Rules because I think that it is still subsection 400(1) that confers upon the Court, in making any order within the excepting language of the given rule, the authority to peg costs somewhere along the continuum from the default provision in rule 407 for Column III costs [of Tariff B] (or below that level) to full solicitor‑client costs, i.e. the level or extent of indemnification for costs.
[12]In Richards v. M.N.R., 2005 DTC 5155 (F.C.), the Court addressed an appeal of an assessment officer’s decision on costs. An application for judicial review relative to the Privacy Act [R.S.C., 1985, c. P-21] had been dismissed by order silent on costs. Regardless, the respondent presented a bill of costs for assessment further to the Privacy Act, subsection 52(1) providing that “costs . . . shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.” The assessment officer, after careful analysis, decided that there was no authority to assess costs in the face of an order silent on costs. The Court found otherwise (at paragraphs 11-17):
I have concluded that the Assessment Officer erred and that the Bill of Costs should be sent back to him for taxation because, as a matter of law, Lemieux, J.’s order is deemed to have included an order for costs.
The basic premise is that the award of costs is discretionary. Rule 400(1) and (2) provide : . . .
If a judgment does not include an order concerning costs, a party may request directions pursuant to Rule 403.
However, the governing Act, or Regulations, may contain default provisions with respect to costs. Section 52 of the Privacy Act is such a default provision. Since a court already has the inherent jurisdiction to grant costs to an unsuccessful party, or to or against a third party, and, for that matter, occasionally even against a non‑party, section 52 has to be taken at its face value.
Another default rule, but to the opposite effect, is Rule 22 of the Federal Court Immigration and Refugee Protection Rules, which provides : . . .
Because of this rule, orders in immigration and refugee cases normally do not mention court costs. It is not necessary to say “there shall be no order as to costs” or “each party shall bear its own costs” because the Rules already so provide unless the Court derogates therefrom.
For these reasons, the motion is granted and the matter is referred back to the Assessment Officer for an Assessment of Costs. However, since there was no guiding case law directly on point, there shall be no costs on this motion itself.
Subsection 410(2) cannot be directly compared to section 52 [of the Privacy Act] or rule 22 [of the Immigration Rules] because of certain differences in wording, i.e. costs following the event or mention of both sides, but its wording is not so different from the latter two as to render it incapable of also being described as a default provision within the meaning of Richards, above. As well, that the phrase “each side shall bear its own costs” was not used instead of this phrase in subsection 410(2), “costs. . .shall be borne by the party bringing the motion”, reinforces or implies the notion that subsection 410(2) intends that the moving party pay the costs of the responding motion party, the only question being whether it is a default provision within the meaning of Richards, above, or is a visible order of the Court a prerequisite.
[13]Rule 293, addressing exaggeration of claims in simplified actions, provides that the Court may award costs against any party. The editorial note in Federal Courts Practice 2007, above, at page 666 indicates that the Court may in awarding costs and per paragraph 400(3)(n) consider this factor relative to the simplified action rules. This is consistent with my view that certain rules may act to modify or clarify, i.e. entitlement to costs, the operation of subsection 400(1), but do not otherwise limit the broad discretion in subsection 400(1), i.e. level of indemnification. Subsection 299.41(1) [as enacted by SOR/2002-417, s. 17] bars the Court from awarding class action costs except as permitted by subsections (2) and (3). The editorial note in Federal Courts Practice 2007, above, at page 690, asserts that this “displaces the Court’s usual broad discretion as to costs.” I do not think that this helps in construing subsection 410(2).
[14]Subsection 465(3), addressing costs of a party or non‑party associated with funds and enforcement of orders, simply modifies or clarifies subsection 400(1) and does not assist in construing subsection 410(2). The same can be said about paragraph 472(f) addressing contempt of Court. Rule 494 provides that a caveator (who can be a non‑party) is liable for costs and damages resulting from the caveat unless it can satisfy the Court that it should not be liable therefor. The potential for costs and damages considerably greater than the costs of a motion to extend time likely means that this is not a default obligation to pay the other side, and instead requires an intervening finding by the Court. That is, the phrase “is liable to payment” in rule 494 is not broad enough on its own to constitute a default entitlement and instead requires a visible order of the court particularly because of the imposed onus on the caveator of damages.
[15]The decision of the assessment Officer, reported at [1998] F.C.J. No. 1171 (T.D.) (QL), being appealed in Maison des Pâtes, above, found that, in the absence of a visible order for costs relative to an application to extend time, the moving party could not claim its costs from the responding motion party and must bear said costs itself. The assessment Officer did not, and the Court sitting in appeal and approving his findings also did not, analyse subsection 410(2) on its potential as a default obligation for the moving party to pay the responding motion party’s costs. This case does not help the respondents’ position here because the consideration there appeared to be that an award of solicitor‑client costs as a consequence of discontinuance of the expungement proceeding could not be stretched to include the motion for an extension of time.
[16]Although it was not raised before me, I note that the Federal Court—Trial Division in Maison des Pâtes, above, based on certain Ontario case law, found (decision dated February 12, 1999) that the assessment Officer had erred in law by not finding that the order for solicitor‑client costs had the effect of “topping up” a previous interlocutory award of lump sum costs. The rationale, as I understand it, was that although the matter of interlocutory party-and-party costs was conceded as res judicata, parties might refrain from properly seeking costs of a motion so as to preserve the right, to be asserted later as part of a judgment on the substantive issues of the litigation, to solicitor‑client costs for the entire proceeding, specifically to extend back and include said interlocutory applications. In other words, and using the circumstances in Maison des Pâtes above as an example, the Court’s first award there (interlocutory) of lump sum party-and-party costs of $3,500 could be topped up by the subsequent award (final) of solicitor‑client costs for the entire proceeding on the basis that the judge making the latter award was in a better position than the judge making the former award to gauge the relevance of the interlocutory proceeding for the overall result. With respect, and I note this simply to reinforce my views on the effect of interlocutory awards of costs, I cannot agree. One of the cases cited by the applicant here for the proposition that no assessed costs are available further to orders silent on costs was Merck & Co. v. Apotex Inc., above. There, the Federal Court purported to top up costs by amending or varying existing interlocutory awards of costs, deemed to be at the Column III level per rule 407, by directing that they be taxed and paid at the upper end of Column IV. On appeal, the Federal Court of Appeal (decision dated October 10, 2006, above) relied on certain case law, including Aird, above, to find that such “topping up” was precluded because the subject interlocutory awards of costs were res judicata.
[17]In See‑You, above, the Federal Court addressed and dismissed an appeal by the responding motion party of a prothonotary’s order allowing an extension of time to file an application record and directing that no costs were payable on the motion. Neither the Prothonotary nor the Court on appeal stated that subsection 410(2) granted the responding motion party a default entitlement to its costs in the absence of an order otherwise. Rather, as the Prothonotary’s decision specifically asserted a refusal to award costs against the moving party because of certain conduct of the responding motion party, a presumption, not at all apparent, might be that the Prothonotary acknowledged subsection 410(2) as a default obligation for the moving party to pay the responding motion party’s costs and made the requisite order within the excepting language of subsection 410(2) to override said obligation. This is speculation of no help to the respondents here.
[18]There are two cases of note in Federal Courts Practice 2007 above, at page 895. The Federal Court’s decision in Cross‑Canada Auto Body Supply (Windsor) Ltd. v. Hyundai Auto Canada, a division of Hyundai Motor America, 2005 FC 1266, began by stating that this “is an appeal from the order of Prothonotary . . . wherein he granted the Respondent an extension to file a Notice of Appearance, and failed to award costs to the Applicants.” The Court dismissed that portion of the appeal addressing the time extension itself. However, at paragraph 13, the Court addressed costs by stating that “I do not see why the Prothonotary deviated from Rule 410(2)”, the “party applying for an extension should normally bear the costs of the motion” and the “fact that the Applicants brought a motion for default judgment does not disentitle them from costs.” The Court then awarded costs of the motion to extend time to the responding motion parties before the Prothonotary. This recent finding (decision dated September 14, 2005) does not assist the respondents’ position here. That is, the notion of subsection 410(2) as a default obligation for the moving party to pay the responding motion party’s costs did not occur. Instead, said decision continued the notion that a visible award of costs is necessary, entitlement thereto however being weighted strongly in favour of the responding motion party.
[19]In Canadian Olympic Assn. v. Olymel, Société en Commandite (2001), 11 C.P.R. (4th) 378 (F.C.), the Federal Court allowed a motion for an extension of time to file an appeal and ordered the moving party to pay lump sum costs of $1,500 to the responding motion party. There is nothing to indicate that the Court considered the notion of subsection 410(2) as not requiring a visible order that the moving party pay the Column III costs (prescribed by rule 407) to the responding motion party. The lump sum aspect of the award of costs was, in my opinion, simply a function of its broad subsection 400(1) authority for level of indemnification undiminished by the modifying effect of subsection 410(2) addressing entitlement.
[20]To clarify my understanding of my authority relative to an apparent practice of the Court, i.e. the necessity for a visible order that the moving party pay the subsection 410(2) costs of the responding motion party, in the face of an apparently (in my view) reasonable alternative advanced here by the respondents, i.e. subsection 410(2) by default requires, without the necessity of a visible order, that the moving party pay the subsection 410(2) costs of the responding motion party, I read Halsbury’s Laws of England, 4th ed. reissue, Vol. 37 (London : Butterworths, 2001), at pages 9 to 22, paragraphs 1 to 14 inclusive, i.e. the “Introduction to Practice and Procedure”. Paragraph 1 asserts civil procedure law as a distinct branch of law, including practice and procedure. Paragraphs 3 and 4 address the relationship between substantive law, i.e. that creating the rights and obligations embodied in the law, and civil procedure law, i.e. that which is the machinery or manner of application and enforcement of the substantive law. Paragraph 4 speculates that perhaps “the term ‘practice’ is narrower than the term ‘procedure’, since practice may be limited to the habitual, repetitive or continuous use of practical methods or modes of proceeding, whereas ‘procedure’ refers to the mode or form of conducting judicial proceedings, whether they be to the whole or part of the suit” and notes that the “distinction may rarely be invoked, since the terms are almost invariably used in conjunction.”
[21]Paragraph 13 reads :
13. The practice of the court. A rather undefined source of civil procedural law is the practice of the court, not expressed in practice directions nor in any particular case, but a course of proceedings which has been followed over a period of time by successive judges1. To some extent, ‘the practice of the court’ has been recognised by statute as a source of civil procedural law2. It is, however, not easy to define what is the practice of the court or how it is to be ascertained, and, in any event, it is thought that it would be open to a judge to come to a conclusion which may differ from what he may be told or knows to be the practice of the court3.
1 See Salm Kyrburg v Posnanski (1884) 13 QBD 218, DC, where both Huddleston B and Grove J supported their judgments on appeal from an order of the judge in chambers giving leave to issue a writ of attachment by saying that they were informed by the masters that that was a general practice that had been followed since the Supreme Court of Judicature Act 1873, and Grove J added, at 224, ‘This, of course, is not conclusive on us, but it seems to me to afford an argument to the extent that it is a reason for not interfering with the actually existing practice unless the arguments against it strongly preponderate’. See also Stumm v Dixon & Co and Knight (1889) 22 QBD 529 at 531, CA; Davies & Co v André & Co (1890) 24 QBD 598, CA; Hume v Somerton (1890) 25 QBD 239; Harbottle v Roberts [1905] 1 KB 572, CA; Re Mercantile Lighterage Co Ltd [1906] 1 Ch 491; Morison v Telfer [1906] WN 31. The old maxim was that ‘the practice of the court is the law of the court’, and it reflected the principle that the court is always slow to depart from an established practice.
2 See the Supreme Court Act 1981 s 67, which provides that business in the High Court is to be heard and disposed of in court (ie in open court or in public) except in so far as it may under that or any other Act, under rules of court or in accordance with the practice of the court, be dealt with in chambers or in private. Although it is placed on the same footing as the rules of court, the phrase ‘the practice of the court’ is not defined, or even described, and it remains a somewhat vague and obscure, if not ambiguous, term. . . .
3 See Adlington v Conyngham [1898] 2 QB 492, CA.
[22]The decision in Mercantile Lighterage Company, Limited (In re), [1906] 1 Ch. 491, addressing a practice of the taxing master for costs, found among other things that the practice was not in accord with the subject rule and referred the taxation back to the registrar accordingly. At page 497, Warrington J. stated that he “need not say that I have been reluctant to interfere with a practice which has been so long established, but when there is, as I think, a plain construction of a rule, I consider it my duty to give effect to it.”
[23]The decision in Adlington v. Conyngham, [1898] 2 Q.B. 492, addressed a practice of the taxing master that costs for examinations in aid of execution were not payable by judgment debtors as such examinations were considered luxuries to be borne by judgment creditors. It was cited in Halsbury’s, above, to support the proposition that a judge might conclude differently from the known practice of the court. With respect, the Court of Appeal had already dismissed the appeal as statute‑barred and, in obiter comments, seemed simply to be expressing bewilderment over said practice. However, the tenor of its remarks could be read as supporting the proposition in Halsbury’s, above.
[24]I acknowledge that the statutory and regulatory framework underlying the propositions asserted in Halsbury’s, above, differs from that before me, but they are not so different as to render said propositions irrelevant in my considerations. Quite simply, and recalling my comments for Richards, above, I think that an acceptable reading of subsection 410(2) would be that it imposes a default obligation on the moving party to pay the costs of the responding motion party without the necessity of a visible order to do so. Unfortunately for the respondents here, the practice to date indicates the opposite, i.e. that although entitlement to costs is weighted in favour of the responding motion party, a visible order to pay them is necessary. I think that a factor raised here by the applicant, i.e. that subsection 410(2) surely could not be intended as a default obligation in circumstances in which the request for time is a relatively minor head of relief among several more substantive ones, might be relevant, but in the context of the excepting language of the rule. With deference to the presumption in the practice embodied in the decisions to date, but with considerable reluctance given my analysis above, I conclude that I should not depart from said practice. I disallow the respondents’ costs as they relate to the four motions, i.e. items 5 and 21(a) [of Tariff B], as the circumstances of the issue before me were not distinguishable from those underlying said practice.
[25]My comments in Nature’s Path Foods Inc. v. Country Fresh Enterprises Inc., 2007 FC 116, at paragraphs 20, 21 and 23 apply and shape my approach to the balance of the respondents’ bill of costs. That an item 2 application record is never filed does not mean that work on it by counsel could not have occurred. I allow the minimum 3 units ($120 per unit). In Air Canada v. Canada (Minister of Transport), [2000] F.C.J. No. 101 (T.D.) (QL), I considered the circumstances for allowing item 28 [of Tariff B] (services of paralegals etc.), claimed here for the application record and the motions. I find that the record does not support any allowances. The difficulties posed by this assessment of costs were not the respondents’ fault. Their submissions were well formulated. I allow item 26 (assessment of costs) as presented at the maximum 6 units. Disbursements for the proceeding as a whole were claimed at $520.25 (printing, facsimiles, telephone, deliveries and miscellaneous, some of which would have addressed the disallowed motion claims), which I allow at $95. The respondents’ bill of costs, presented at $9,487.85, is assessed and allowed at $1,239.80.