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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.