T-2994-72
Crelinsten Fruit Company and William D. Bran-
son Limited (Plaintiffs)
v.
Maritime Fruit Carriers Co. Ltd. (Defendant)
Trial Division, Walsh J.—Montreal, January 12;
Ottawa, January 27, 1976.
Practice—Costs—Application to review and set aside taxa-
tion—Cargo of fruit shipped from Australia to Montreal
spoiling—Evidence involving tracing of methods of picking,
packing, shipping, etc.—Substantial and difficult issues
involved—Federal Court Rules 3(c), 337(5), 344(4),(7), 346(2),
Tariff A, s. 4(2), B, ss. 2(a),(b), 3.
A cargo of fruit shipped from Australia to Montreal spoiled,
and became unmarketable at an earlier date than should have
been anticipated. The evidence involved tracing the methods of
picking, packing and shipping the fruit, detailed evidence as to
method of delivery, etc., and comparative evidence as to condi
tion of fruit shipped on the same and similar vessels to the New
York market. Judgment was rendered for plaintiff for $89,352.
There was no discussion of costs, nor any request for a special
order. An amended judgment was issued, and by the time a
motion was made for taxation of plaintiffs' bill of costs, it was
too late for plaintiffs to apply for an amendment to the
judgment under Rule 337(5) to seek a special direction by
virtue of Rule 344(7). Defendant applies to review and set aside
certain parts of the party and party bill of costs as taxed.
Held, the bill of costs is reduced to $24,845.17. The scheme
of the Rules taken as a whole requires that, in the event of a
departure from the sums set out in the Tariff, it is the Court
which should have the discretion to decide. Whether permission
to increase the Tariff amounts is given on pronouncement of
the judgment, as a result of a subsequent amendment of this
pronouncement, or whether on appeal from a taxation by the
Registrar, the Rules and justice require that the judge may
exercise his discretion in a proper case. Substantial and difficult
issues were involved, and it is proper that amounts should be
allowed to experts and counsel over and above standard Tariff
amounts.
Crabbe v. Minister of Transport [19731 F.C. 1091, distin
guished. Aladdin Industries Inc. v. Canadian Thermos
Products Ltd. [1973] F.C. 942 and National Capital
Commission v. Bourque [1972] F.C. 519, applied.
APPLICATION.
COUNSEL:
Y. Bolduc for plaintiffs.
T. Bishop for defendant.
SOLICITORS:
Robinson, Sheppard, Borenstein, Shapiro &
Flam, Montreal, for plaintiffs.
Brisset, Bishop & Davidson, Montreal, for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an application by defendant
to review and set aside certain parts of the party
and party bill of costs taxed by L. Joseph Daoust,
District Administrator in Montreal on December
9th, 1975. At the conclusion of the hearing no
discussion took place with respect to costs nor was
any request made for a special order concerning
them. The judgment was merely rendered in
favour of plaintiff for $89,352 with costs. Subse
quently, an amended judgment was issued to
include interest at 5% from September 22nd, 1969,
this being another matter which had not been dealt
with in the original judgment. By the time a
motion was made on December 9th, 1975 for
taxation of plaintiffs' bill of costs it was already
far too late for plaintiff to apply for an amendment
to the judgment under Rule 337(5) in order to
seek from the Court a special direction with
respect to costs by virtue of Rule 344(7).
Tariff A, Section 4(2) states:
4. (2) In lieu of making a payment under section 3 1 , 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.
Tariff B, Section 2(2)(a) states:
2. (2) ...
(a) All disbursements made under Tariff A may be allowed,
except that payments to a witness under paragraph 4(2) may
only be allowed to the extent directed by the Court under
Rule 344(7),
Furthermore, Tariff B, Section 3, states:
3. No amounts other than those set out above shall be
allowed on a party and party taxation, but any of the above
amounts may be increased or decreased by direction of the
Court in the judgment for costs under Rule 344(7).
As a result, as pointed out by Chief Justice
Jackett, in the case of Crabbe v. Minister of
1 $35 a day.
Transports, in the absence of an application under
Rule 344(7) made within the time limited by Rule
337(5), the Court could not, in that case, award a
lump sum for costs in place of the costs fixed by
the Tariff. The same applies on an appeal from the
taxation under Rule 346(2). Page 1093 of the
judgment states:
Finally, it is to be noted that the so-called appeal from a
taxation is to be found in Rule 346(2), which provides that
costs are to be taxed by a taxing officer "subject to review by
the Court upon the application of any party dissatisfied with
such a taxation". It is obvious that, on such a review, the Court
decides whether the taxing officer erred in performing his duty
and on such a proceeding it can neither change the Court's
judgment or direction nor make a direction or order contem
plated by Rule 344(4) or paragraph 3 of Tariff B.
I believe, however, that this case might perhaps
be distinguished in that, at page 1093, the judg
ment also states:
In the present case, since the judgment was pronounced in
open court, the matter of awarding a fixed amount in lieu of
costs to be taxed might have been spoken to before the judg
ment was pronounced.
That is not the situation in the present case.
Moreover, the application before me does not con
sist of a request by plaintiff to increase the costs
allowed by the Registrar on taxation but is rather
an appeal from this taxation by defendant, seeking
to reduce the amounts he awarded. It was at my
suggestion that the bill of costs was submitted to
him in the first case for taxation, subject to an
appeal in the event that the parties did not agree
on the amounts awarded. This case therefore close
ly resembles that of Aladdin Industries Inc. v.
Canadian Thermos Products Ltd. 3 in which Kerr
J. stated at page 945:
It may be that I was wrong in suggesting that Thermos have
its costs taxed, subject to review by the Court. However,
Thermos acted on that suggestion, and I have heard the parties
on the merits of the costs and the application to review them. I
am convinced that some of the amounts in Tariff B are
inadequate to do justice costwise to Thermos in the circum
stances of this case, having regard particularly to the great
volume of work done in preparation for the trial, and I am
mindful of what was said by Collins M.R., in Re Coles and
Ravenshear [1907] 1 K.B. I at page 4 as follows:
2 [1973] F.C. 1091.
3 [1973] F.C. 942.
Although I agree that a Court cannot conduct its business
without a code of procedure, I think that the relation of rules
of practice to the work of justice is intended to be that of
handmaid rather than mistress, and the Court ought not to
be so far bound and tied by rules, which are after all only
intended as general rules of procedure, as to be compelled to
do what will cause injustice in the particular case.
Consequently, I will review the taxation and allow amounts
above those in Tariff B where I think that increases should be
allowed, on the basis that it is appropriate and within my power
to do so in the circumstances and that although Rule 344(7)
contemplates a direction from the Court within a time that has
expired in this case, such time would be extended under Rule
3(1)(c) if the Court considered that such a direction was
necessary for allowance of increases in costs in this case.
See also National Capital Commission v.
Bourque 4 in which Chief Justice Jackett stated at
pages 529-30:
In the Federal Court Rules, we find that paragraph 4(2) of
Tariff A provides as follows:
(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.
and that Tariff B, which regulates the amounts that may be
allowed in a party and party taxation, provides in paragraph
2(2) as follows:
2. (2) Disbursements
(a) all disbursements made under Tariff A may be allowed,
except that payments to a witness under paragraph 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 essen
tial for the conduct of the action.
(It is true that this provision contemplates a direction from the
Court within a time that has expired in this case but we have no
doubt that such time would be extended, in the circumstances
of this case, under Rule 3(c)).
I believe that the scheme of the Rules taken as a
whole requires that in the event of a departure
from the sums set out in the Tariff, it is the Court
which has the discretion to decide. Whether per
mission to increase the Tariff amounts is given on
the pronouncement of judgment, as a result of a
subsequent amendment of this pronouncement, or
whether on an appeal from a taxation by the
Registrar, the Rules and justice require that the
judge may exercise this discretion in a proper case.
In the present action, a claim of $147,151.54
was involved, arising out of the perishing of a
[ 1 97 2] F.C. 519.
cargo of fruit shipped from Australia to Montreal,
which shipment went bad and became unmarke-
table both in Montreal and Toronto to a substan
tial extent at a much earlier date than should have
been anticipated. The evidence involved tracing
the methods of picking, packing and shipping the
fruit from various growers in Australia to the
docks, including the optimum date for picking,
details of the manner in which the fruit was
packed, construction of the refrigerated ships in
which it was transported, and detailed evidence
involving the method of delivery of the fruit to cold
storage warehouses in Montreal and Toronto and
subsequent withdrawal from them for marketing.
Comparative evidence was also given as to condi
tion and marketability of fruit shipped on the same
and other similar vessels to the New York market.
The trial in Montreal occupied 10 1 / 2 days, there
were 526 pages of discovery of various witnesses
and 158 pages of evidence taken on a rogatory
commission in New York and 571 pages of such
evidence in Australia. 72 exhibits were filed by the
plaintiffs and 86 by defendant. Plaintiff called 16
witnesses, including 4 experts and defendant 12,
including 2 experts. The judgment was eventually
rendered in favour of plaintiffs for $89,352. Obvi
ously substantial and difficult issues were involved.
Fruit growing and packing experts were brought
from Australia, Israel and England to testify and
counsel for the parties had to travel to Australia
and to New York in connection with the rogatory
commissions. It is evident on these facts that it is
proper that amounts should be allowed to experts
and counsel, over and above the standard amounts
fixed in the Tariff. In the Aladdin Industries Inc.
case (supra) Kerr J. stated, at pages 948-9:
It is a generally accepted principle that party and party costs
are awarded as an indemnity or partial indemnity to the
successful litigant against costs reasonably incurred, subject to
the express provisions of any applicable statutes and the tariffs
and rules of the court concerned.
The amounts provided in section 2 of Tariff B for services of
solicitors and counsel are intended to be appropriate in the
general run of cases coming before this Court. The amounts
may be increased or decreased by direction of the Court, and in
exercising its discretion to increase the amounts the Court will,
I should think, have due regard to any special circumstances,
including the complexity, value and importance to the litigants
of the proceedings and the time and work reasonably involved
in the services. In the present case there are such special
circumstances, and I think that increased amounts are warrant
ed in respect of some of the items. I also think that the amounts
in section 2 for the general run of cases may be taken and used
as a guide or yardstick in fixing commensurate increases.
This statement of principle was cited with
approval in a judgment of Heald J. on December
10th, 1973, in the unreported case of Leithiser v.
Pengo Hydra-Pull of Canada Ltd., T-1738-71. At
the hearing of the motion to review the taxation in
the present case, defendant withdrew his objec
tions to taxation of items A, D and E being the
professional fees of G. Hall, Seymour Levine and
Leo Klein. Plaintiff in turn withdrew the claim
under item B of G. Hall for three long distance
calls in the amount $32.06. The items remaining in
dispute therefore are the following:
C. Harold J. Gates,
professional fee $ 1,225.00
F. Counsel fee for
Martineau, Walker $ 3,874.75
G. Mallesons, Solicitors in Melbourne,
related to dealing with expert witness
Hall $ 698.78
H. Mallesons, Solicitors in Melbourne,
related to services supplied to Plaintiff
in Australia $11,662.49
With respect to the evidence of the witness
Gates, or more specifically the invoice of Superin-
tendance Company (Canada) Ltd. by whom he is
employed, in the amount of $1,225, this is based
on services from March 13th to 15th and April 8th
to May 2nd, 1974, including expenses according to
the invoice. He testified briefly on one day as an
expert witness and his evidence was only of mar
ginal significance in connection with the outcome
of the case. There was certainly no need for him to
remain in attendance throughout the trial which
lasted from April 23rd to May 7th. During his
testimony he stated that he had read most of the
evidence taken at the rogatory commission in Aus-
tralia and in New York but this would certainly
not involve more than two additional days in
preparation for the trial. The other experts were
allowed $150 a day and I believe that an allowance
of $450 would be sufficient, representing a reduc
tion of $775 on the amount of $1,225 claimed.
With respect to the counsel fee for Martineau,
Walker, law firm, in the amount of $3,874.75 for
professional services rendered in connection with
the action, and including advice, opinions with
respect to the law, acting as counsel in the prepa
ration and taking of the action, it is stated that this
was based on a charge of 21 hours for Mr. Tetley,
at $75 an hour and 31 hours for Mr. Cleven at $45
an hour. This only totals $2,970. This law firm
commenced the proceedings and carried on
throughout the initial stages including the motions
for the appointment of rogatory commissioners,
before being substituted as attorneys of record by
Robinson, Sheppard et al. Defendant does not
dispute that the services of Messrs. Martineau,
Walker et al. were useful, nor claim that the
amount of their account is excessive but points out
that all the tariff items to which they would be
entitled in connection with the institution of the
proceedings and all the preliminary motions have
already been covered in the bill of costs and there
would be duplication if they were now able to
render an account covering at least in part the
services so provided. They were not present in
Court at trial and did not participate in the con
duct of same and any services rendered by them to
the attorneys who were substituted for them after
the entry of the latter into the record must have
been at least partly of an advisory nature. Attor
neys of record are taxed in accordance with the
tariff in the bill of costs for the preparation for the
hearing and the conduct of same as well as for the
preliminaries and cannot be compensated on a
time-charge basis over and above this so it would
not be reasonable if, as a result of a substitution in
the record for the original attorneys of record, a
claim could be made in addition to all the fees
which attorneys of record are allowed for a further
sum as a disbursement incurred in the payment of
the account of the original attorneys of record.
Neither would it appear to be proper to treat
learned counsel who are engaged as such by an
attorney of record in an advisory capacity, who do
not participate in the trial, in the same manner as
expert witnesses and consider sums disbursed for
these services as a disbursement proper to include
in any party and party taxation of the bill of costs.
Of the sum of $3,874.75 claimed under this head
ing therefore, I believe that only the disbursement
of $74.75, which presumably was incurred in the
early stages of the action when the Martineau,
Walker firm were attorneys of record, should be
allowed and the claim is therefore reduced by
$3,800 under this heading.
With respect to the first Mallesons invoice, in
the amount of $698.78 (Australian $532.01) this
represented $147.01 (Australian) as disbursements
and $385 for:
taking your further instructions in this matter, contacting Mr.
E. G. Hall in Sydney and arranging to obtain affidavit from
him, attending Mr. Hall in Sydney and drafting, engrossing
and arranging swearing of affidavit, forwarding same by air
freight to Montreal, including incidental attendances etc.
While the affidavit from Mr. Hall was only five
pages in length, these services did apparently
involve travel by a representative of Mallesons
from Melbourne to Sydney, Australia and I do not
believe that this account should be reduced.
The second Mallesons account consists of fees of
$4,500 (Australian) and various disbursements
amounting to $5,300.41 (Australian) making a
total of $9,800.41 (Australian) which has been
converted to $11,662.49. Counsel for defendant
did not seriously object to most of the disburse
ments although he queried the item for the
expenses and fees of the witness Hall, namely
$175.05 (Australian) for coming from Sydney to
Melbourne at the time of the rogatory commission,
at which he did not testify. He also queried the
claim of $967.41 (Australian) for photocopying.
Similar disbursements were allowed in the Alad-
din case (supra) but disallowed in the Leithiser
case, due to absence of proof. On explanation that
this photocopying was probably for extra copies of
the evidence taken on the rogatory commission,
counsel for defendant withdrew his objection. He
contended however that Mallesons were not
required to be present throughout the 11 days of
the rogatory commission in Australia and if they
were so, this was of the nature of a luxury and at
the request of counsel for plaintiff. Other services
rendered by them in Australia were necessary,
however and he suggested that one third of their
claim should be allowed. I believe this to be insuf
ficient and would allow one half $2,250 (Australi-
an). The net reduction of this account therefore is
$2,250 (Australian). The net reduction of this
account therefore is $2,250 (Australian) of the
fees and $175.05 of disbursements or a total of
$2,425.05.
Since the original claim of $9,841 (Australian)
was converted to $11,662.49 Canadian, this repre
sents approximately a 20% increase on exchange.
The sum of $2,425.05 (Australian) increases to a
sum in round figures of approximately $2,910
Canadian. The four reductions made of $32.06,
$775, $3,800 and $2,910 makes a total reduction of
$7,517.06 reducing the amount of the bill of costs
taxed at $32,362.23 to a balance of $24,845.17 for
which I now direct the bill of costs should be
taxed.
ORDER
On review of the taxation of the bill of costs
herein, same is reduced to $24,845.17, 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.