A-208-77
Edgar Lloyd Fisher and Anita Inis Fisher
(Applicants)
v.
The Queen (Respondent)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, July 28, 1977.
Judicial review — Practice — Whether solicitor could be
assessed costs personally under Rule 348(1)(b) — Misconduct
that of agent — Judge sitting as persona designata under
Expropriation Act and applying Federal Court Rules in
absence of procedural direction — Whether or not order
properly made — Expropriation Act, R.S.C. 1970 (1st Supp.),
c. 16, ss. 35, 36 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 28, 46(2), 52(d) — Federal Court Rule
348(1)(b).
Although the applicants in this section 28 application were
allowed to withdraw, counsel, in his personal capacity, brought
a section 28 application, under the same style of cause, to set
aside an order off a judge sitting as persona designata under the
Expropriation Act, and pursuant to the Federal Court Rules,
in so far as it directed him to personally pay certain of the
solicitor-client costs taxed against his clients. The applicant
argued that the Judge had been biased, and the Federal Court
Rules misapplied, and disclaimed responsibility for the miscon
duct of his agent giving rise to the order in question.
Held, the application is dismissed. As laid down in Myers v.
Elman, the principal clearly is liable for the misconduct of his
agent. A judge sitting as persona designata under section 35 of
the Expropriation Act can, by section 36(1), direct costs to be
paid by any party to the proceedings. In the absence of
procedural direction, the judge can rely on section 46(2) of the
Federal Court Act, and apply Rule 348 requiring the solicitor
to pay the costs assessed against his clients. Unless the Judge
erred in law, this Rule's application is a matter of judicial
discretion not properly the subject of a section 28 application.
The issue of bias was based on one sentence in the reasons for
judgment, and without further evidence, is unfounded. How
ever, as the form of the order is not in strict compliance with
Rule 348, it is referred back to the judge persona designata to
be dealt with as directed.
Myers v. Elman [1940] A.C. 282, applied.
APPLICATION.
COUNSEL:
H. S. D. Paisley for applicants.
D. Estrin for himself.
Thomas Dunne for respondent.
SOLICITORS:
Blaney, Pasternak, Smela & Watson,
Toronto, for applicants.
D. Estrin, Toronto, for himself.
McTaggart, Potts, Stone & Herridge,
Toronto, for respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: The applicants in this section 28
application at the opening of Court this morning,
applied to withdraw, on consent, their application
and such withdrawal was granted. However, coun
sel who had appeared on behalf of the applicants
throughout the proceedings to date, in his personal
capacity brought a section 28 application, under
the same style of cause, to set aside the order of
Mahoney J. of the Trial Division sitting persona
designata pursuant to section 35 of the Expro
priation Act, R.S.C. 1970 (1st Supp.), c. 16,
(hereunder called the "Act") in so far as it direct
ed that the counsel, David Estrin, personally pay
certain of the taxed solicitor-client costs assessed
against his clients.
The applicants' argument, as I understood it,
falls into four divisions:
' 35. (1) When the Minister, or a person acting for him, is
prevented from entering upon or taking physical possession or
making use of any land to the extent of any interest expropriat
ed under this Part, a judge of the Court or any judge of a
superior court of a province may, on proof of the expropriation
and, when required, of the right of the Crown to take physical
possession or make use thereof, and after notice to show cause
given in such manner and to such persons who shall be parties
to the proceedings as the judge prescribes, issue his warrant in
accordance with the form set out in Schedule I to this Act to
the appropriate sheriff directing him to put the Minister, or a
person authorized to act for him, in physical possession of the
land to the extent of the interest expropriated.
(2) The sheriff shall forthwith execute a warrant issued to
him under this section and shall make return of the warrant to
the court to which the judge who issued it belongs, and of the
manner in which it was executed.
(1) that because the misconduct of counsel which
caused the learned Judge to make the order as to
payment of costs was not the misconduct of Mr.
Estrin but that of another counsel, acting for him,
Mr. Estrin could not be held liable for such
misconduct;
(2) that he was not a "party" to the proceedings
and thus costs could not be assessed against him
under section 36 2 of the Act;
(3) that the learned Judge had no author
ity to invoke the Rules of the Federal Court to
order costs to be paid by a solicitor. Furthermore,
even if he could, those Rules did not authorize him
to assess costs to be paid personally by a solicitor
but, at best, in this case he could be ordered to
repay any costs assessed against his clients, as the
unsuccessful litigants, and paid by them (see Rule
348(1)(b)) 3 ;
z 36. (1) Subject to subsection (2), the costs of and incident
to any proceedings in the Court under this Part are in the
discretion of the Court or, in the case of proceedings before a
judge of the Court or a judge of the superior court of a
province, in the discretion of the judge, and the Court or the
judge may direct that the whole or any part of such costs be
paid by the Crown or by any party to the proceedings.
(2) Where the amount of the compensation adjudged under
this Part to be payable to a party to any proceedings in the
Court under section 29 in respect of an expropriated interest
does not exceed the total amount of any offer made under
section 14 and any subsequent offer made to such party in
respect thereof before the commencement of the trial of the
proceedings, the Court shall, unless it finds the amount of the
compensation claimed by such party in the proceedings to have
been unreasonable, direct that the whole of such party's costs of
and incident to the proceedings be paid by the Crown, and
where the amount of the compensation so adjudged to be
payable to such party exceeds that total amount, the Court
shall direct that the whole of such party's costs of and incident
to the proceedings, determined by the Court on a solicitor and
client basis, be paid by the Crown.
'Rule 348. (1) Where in any proceedings costs are incurred
improperly or without reasonable cause or are wasted by undue
delay or by any other misconduct or default, the Court may
make against any attorney or solicitor whom it considers to be
responsible (whether personally or through a servant or agent)
an order
(b) directing the attorney or solicitor to repay to his client
costs which the client has been ordered to pay to other
parties to the proceedings;...
(4) that the reasons for judgment disclose that the
learned Judge was biased against Mr. Estrin and
such bias was reflected in his order that the costs
be paid by Mr. Estrin.
With respect to the first argument, Mr. Estrin
who had been unable to be present on the cross-
examination on certain affidavits filed in the pro
ceedings under section 35, had retained another
counsel to attend on his behalf. Mr. Estrin conced
ed the second counsel was acting as his agent.
The reasoning, therefore, of Lord Wright in his
speech in the House of Lords in Myers v. Elman 4
at pages 319 and 321 applies.
The underlying principle is that the Court has a right and a
duty to supervise the conduct of its solicitors, and visit with
penalties any conduct of a solicitor which is of such a nature as
to tend to defeat justice in the very cause in which he is
engaged professionally as was said by Abinger C.B. in Stephens
v. Hill.
It would perhaps be more accurate to describe it as conduct
which involves a failure on the part of a solicitor to fulfil his
duty to the Court and to realize his duty to aid in promoting in
his own sphere the cause of justice.
There was improper conduct, though the solicitor was not
personally implicated. Jervis C.J. thus sums up the position: "as
it was done in his office, and by a person for whom he is
responsible, and as he received the money, I think he is so far
implicated as to make him responsible." It is no doubt true that
a solicitor will not be struck off the Rolls or suspended, unless
he is personally implicated, but with the greatest respect I can
find neither reason nor authority for the view of the Court of
Appeal that the discretionary and remedial jurisdiction of the
Court to order reimbursement of costs or expenses thrown away
owing to his improper conduct in a case cannot be exercised
unless the solicitor is personally implicated.
In my view, therefore, the applicant's argument
fails on this branch and clearly he is liable for the
misconduct of his agent.
Submissions (2) and (3) may be more conven
iently dealt with together. Section 36(1) of the Act
authorizes a Judge of this Court, sitting persona
designata, pursuant to section 35 on an application
for a warrant of possession, to direct that costs be
paid by any "party" to the proceedings. There is
4 [1940] A.C. 282.
no direction as to how the costs may be paid,
including any direction that authorizes that they
be paid by a solicitor or counsel. As a result of this
lack of procedural direction resort may be had to
section 46(2) of the Federal Court Act 5 . Since the
Expropriation Act contains no provision for direct
ing payment of costs assessed against a "party" by
his solicitor, Mahoney J. on the authority of sec
tion 46(2) purported to apply Rule 348 of the
Rules of this Court in directing that Mr. Estrin
pay the costs assessed against his clients, due to
Estrin's agent having "determined to reduce the
examinations to a shambles". In my view, he was
quite entitled to do so disregarding for the moment
the question of the correctness of the precise form
of the order he made.
Whether or not this Rule should be applied is a
matter of discretion of the presiding Judge, the
exercise of which ought not to be interfered with
on a section 28 application, unless in doing so he
erred in law, i.e., unless he proceeded on a wrong
principle or there was no evidence upon which he
properly could have drawn the inferences which he
did, these having formed the foundation of his
order.
The learned Trial Judge found as follows:
The only reasonable conclusion that I could draw from a
perusal of the transcripts in question was that Turner, deliber
ately or by reason of gross ineptitude, on instructions from Mr.
Estrin or on his own initiative, had determined to reduce the
examinations to a shambles. He succeeded in that and, in doing
so, apparently had failed to fulfil his duty as an officer of the
court.
Mr. Estrin conceded that there was evidence
upon which the Judge could have so found and it is
apparent from a perusal of the transcript of the
cross-examination that he was amply justified in so
finding so that Mr. Estrin's candid concession is
justified. That being so, there has been no error
demonstrated in submissions (2) and (3).
5 46....
(2) Rules and orders made under this section may extend to
matters arising out of or in the course of proceedings under any
Act involving practice and procedure or otherwise, for which no
provision is made by that or any other Act but for which it is
found necessary to provide in order to ensure the proper
working of that Act and the better attainment of its objects.
Finally, while the question of bias was raised
and argued, it was based solely on one sentence in
Mr. Justice Mahoney's reasons for judgment. We
were not apprised of any evidence to further sup
port such an argument. While the learned Judge
may have used somewhat unfortunate language in
the sentence complained of, it certainly does not
show in any way that he was biased toward Mr.
Estrin or his clients.
As noted earlier, the form of Mahoney J.'s order
does not precisely comply with Rule 348. How
ever, pursuant to section 52(d) of the Federal
Court Act, we are empowered to set aside the
decision and refer the matter back to Mr. Justice
Mahoney sitting as persona designata pursuant to
section 35 of the Expropriation Act, for determi
nation in accordance with such directions as this
Court considers to be appropriate.
Accordingly, I would set the decision aside and
refer the matter back to Mr. Justice Mahoney
with the direction that the first two lines of para
graph 3 of the order be deleted and the following
be substituted therefor:
3. Mr. David Estrin Esq., shall repay to the respondents herein
that portion of the Costs which the respondents are, by para
graph 5 hereof, ordered to pay to the applicant, and which
relates to the following matters:
I would make the further direction that para
graph 5 of the said order of Mr. Justice Mahoney
be deleted and the following be substituted
therefor:
5. The respondents shall pay to the applicant one-third of all
costs taxed in this and the other two applications.
In all other respects the order of Mahoney J.
should be confirmed.
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