National Capital Commission (Plaintiff)
v.
Édouard Bourque & Paul Bourque (Defendants)
No. 2
Trial Division, Noël A.C.J.—Ottawa, August
19, 23, 1971.
Practice—Costs—Federal Court tariff applies to costs in
Exchequer Court not previously taxed—Solicitor and client
costs—Jurisdiction—Federal Court Act, s. 17(3)(c).
On June 9, 1970, the Exchequer Court gave judgment for
defendants in an expropriation action. Following the coming
into force of the Federal Court Act (on June 1, 1971)
defendants applied to this Court for orders (1) that defend
ants' party and party costs be taxed on the Exchequer Court
scale, and (2), under s. 17(3)(c) of the Federal Court Act,
that defendants' solicitor and client costs be paid directly to
defendants' solicitor.
Held, the motion must be rejected.
1. The Federal Court tariff applies to costs not previously
taxed which were incurred before those tariffs came into
force.
2. The Court has no jurisdiction under s. 17(3)(c) to deal
with the motion, plaintiff not being the Crown; and more
over costs in a trial are party costs and belong to the party
and not the solicitor.
APPLICATION.
Austin O'Connor, Q.C., and L. P. Carr, for
defendants, applicants.
Mrs. Eileen Mitchell Thomas, Q.C., for plain
tiff, contrâ.
NOEL A.C.J.—The application on behalf of
the defendants for an order directing that the
defendants' party and party costs including fees
to expert witnesses be taxed on the scale of
fees allowed in the Exchequer Court of Canada
on June 9, 1970, when judgment was pro
nounced in favour of the defendants for $142,-
000, is dismissed.
In my view it is clear that the new tariffs
under the Federal Court Act shall apply to costs
incurred before, as well as after they came into
force, when they have not been taxed before
they came into force. Section 62(6) reads as
follows:
62. (6) All provisions of law and rules and orders regulat
ing the practice and procedure in the Exchequer Court of
Canada existing and in force at the corning into force of this
-Act shall, to the extent that they are not inconsistent with
the provisions of this Act, remain in force until altered or
rescinded or otherwise determined.
There is, I understand, some inconsistency
between the old tariff and the new one, particu
larly with regard to the amounts to be paid to
expert witnesses, and counsel for the applicants
stated that the difference in this case may be
substantial. This may be the case. However, the
section in my view is quite clear and is retro
spective in so far as there is any inconsistency
with the new tariff adopted by virtue of s. 46 of
the Federal Court Act.
This does not mean, however, that applicants
must be content with the new tariff. It is indeed
possible, as provided under s. 3 of Tariff B, to
have the amounts of the tariff increased by
direction of the Court in the judgment for costs
or under Rule 344(7) which deals with an
application to the Court "to make any special
direction concerning costs contemplated by this
rule including any direction contemplated by
Tariff B and to decide any question as to the
application of any of the provisions in Rule
346".
Taxation of the applicants' costs should,
therefore, be referred to the officer of the regis
try designated for this purpose pursuant to Rule
346(2)(b) following which the applicants, or
their opponent, may then, if they so desire,
appeal such taxation to the Trial Division of this
Court pursuant to Rule 346(2)(b) of the Rules
of this Court.
Counsel for the applicants further applies for
directions pursuant to s. 17(3)(c) of the Federal
Court Act, that the solicitor and client costs of
the defendants, to be taxed in an amount which
he says is estimated at $11,000, be paid directly
to the solicitor for the defendants.
I fail to see how s. 17(3)(c) of the Federal
Court Act, which reads as follows,
17. (3) The Trial Division has exclusive original jurisdic
tion to hear and determine the following matters:
(c) proceedings to determine disputes where the Crown is
or may be under an obligation, in respect of which there
are or may be conflicting claims.
is relevant to the present demand as the plain
tiff herein, who will be called upon to pay these
costs, is not the Crown, although it is an agency
of the Crown. The above section, in my view, is
quite clear and does not apply to an agency of
the Crown such as the National Capital Com
mission, governed by c. N-3 of the Revised
Statutes of Canada 1970.
There is also a further obstacle to granting
applicants' request in that in so far as I can see,
costs in a trial are party costs and belong to the
party and not the solicitor. There is indeed
nothing in the Federal Court Act, or in our
Rules, which states that a condemnation to
costs involves distraction in favour of the solici
tor or attorney of the party to whom they are
awarded, such as exists in art. 479 of the
Quebec Code of Civil Procedure, which reads as
follows:
479. Every condemnation to costs involves, by operation
of law, distraction in favour of the attorney of the party to
whom they are awarded ...
A number of seizures emanating from credi
tors in Ontario and Quebec have caused sei
zures of execution to be served on the National
Capital Commission and there is a motion
before me by the latter which is dealt with in
another decision. Because of these seizures, all
moneys belonging to the defendants, including
the costs, are impounded and must be dealt with
under whatever provincial laws apply.
The National Capital Commission, under
s.4(4) of the statute which created it (R.S.C.
1970, c. N-3) may indeed be sued as an ordi
nary individual and that is why a number of
seizures have now been served with regard to
the amount which remains to be paid to the
defendants as a result of the judgment rendered
by this Court. It therefore follows that no
authorization can be given by this Court with
regard to the payment of either the balance of
the amount of the judgment to be paid or the
amount of the solicitor and client costs to be
established by taxation.
Subject to a reference of the taxation to the
designated officer of the Court, the motions are
dismissed 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.