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Food City Limited (Appellant)
v.
Minister of National Revenue (Respondent)
Trial Division, Kerr J.—Ottawa, November 17 and 30, 1972.
Costs—Taxation—Practice—Order for lump sum—Feder- al Court Rules 344, 346.
APPLICATION.
David French for appellant.
M. J. Bonner for respondent.
KERR J.—Two appeals herein by the said appellant against assessments of income tax were heard by the Exchequer Court of Canada, and by a judgment of that Court rendered on May 21, 1971, the appeals were allowed and the assessments in issue were referred back to the respondent for re-assessment; and the judgment awarded costs of the appeals to the appellant, to be taxed.
Now the appellant applies for an order under this Court's Rule 344 directing that the costs be paid to the appellant in each of the actions in lump sums, and for an order that the time to apply under Rule 344(7) be extended for that purpose.
Rule 344(1) and (7) are as follows:
Rule 344. (1) The costs of and incidental to all proceed ings in the Court shall be in the discretion of the Court and shall follow the event unless otherwise ordered. Without limiting the foregoing, the Court may direct the payment of a fixed or lump sum in lieu of taxed costs.
(7) Any party may
(a) after judgment has been pronounced, within the time allowed by Rule 337(5) to move the Court to reconsider the pronouncement, or
(b) after the Court has reached a conclusion as to the judgment to be pronounced, at the time of the return of the motion for judgment,
whether or not the judgment includes any order concerning costs, move the Court to make any special direction con cerning 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. An application under this paragraph in the Court of Appeal shall be made before the Chief Justice or a judge
nominated by him but either party may apply to a Court composed of at least 3 judges to review a decision so obtained.
On the hearing of the application counsel for the respondent opposed the requested extension of time and submitted also that the costs should be taxed in the usual manner pursuant to Rule 346 rather than by direction of the Court in a lump sum. Rule 346(1) and (2) read as follows:
Rule 346. (1) All costs between party and party shall be as determined by, or pursuant to, the Court's judgment and directions and, subject thereto, Tariff B in the Appendix to these Rules and this Rule are applicable to the taxation of party and party costs.
(2) Costs shall be taxed by
(a) a prothonotary, each of whom is a taxing officer, or
(b) an officer of the Registry designated by order of the Court as a taxing officer,
subject to review by the Court upon the application of any party dissatisfied with such a taxation.
The judgment of the Exchequer Court was rendered only a few days before the Federal Court Act and the Rules of this Court came into force. The new tariffs of costs prescribed by those Rules are different from the tariffs of the Exchequer Court, and it was held by the Associ ate Chief Justice in his reasons for judgment, in National Capital Commission v. Bourque [1971] F.C. 133, that the new tariffs shall apply to costs incurred before, as well as after they came into force, when they have not been taxed before the new tariffs came into force, and he pointed out that this does not mean that an applicant must be content with the new tariffs, for it is possible under section 3 of Tariff B to have the amounts of the tariff increased by direction of the Court under Rule 344(7), ante.
Tariff B, section 3, is as follows:
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 or under Rule 344(7).
It does not appear to me that the respondent has been prejudiced by the appellant's delay in moving to have its costs taxed or to obtain a
direction by the Court for payment of a lump sum in lieu of taxed costs. The application to direct payment of a lump sum is before the Court and the merits respecting the amount of costs have been spoken to, and in all the cir cumstances I will determine the amount of costs now rather than put the parties to taxation with its possibility that the matter would come before the Court again for review in the event of dis satisfaction with the taxation, although I think that where a judgment provides for costs to be taxed the procedure for taxing under Rule 346 should normally be followed, in the absence of circumstances warranting a special direction concerning costs under Rule 344(7).
The appellant is a wholly-owned subsidiary of Sobeys Stores Limited, which has developed an extensive chain of stores and shopping centres in the Maritime Provinces, in the course of which numerous sites have been acquired and developed, and some have been sold, including the two properties concerned in these appeals. The appellant's solicitors considered it neces sary in the appeals to deal with the inter-corpo rate relationships of the appellant and its parent company and affiliates, and their real estate transactions, as the result of those appeals might also affect other land transactions income tax-wise. The two appeals were heard on common evidence. The trial lasted 2 days. The appellant was represented by two counsel. Pre viously, there had been a common discovery lasting 2 to 3 hours. The affidavit in support of this application stated that approximately 20 hours were spent in preparation for the discov ery and an additional 15 hours in providing answers to questions for which counsel for the respondent required undertakings, and that the time spent directly in preparation for the trial was in excess of 130 hours. The assessments in issue in the appeals were in respect of profits of $23,000 realized on the sale of one property and $28,000 realized on the sale of another. The affidavit indicated disbursements incurred in the amount of $163.45. The bills of costs submitted by the appellant amounted to $1,221.95 in one of the appeals, and $1,171.50 in the other. It is understandable that the appellant's solicitors and counsel would consider it necessary to have
regard for the implications of the appeals on other real estate sales of the companies, and would prepare for the appeals with that in mind, but I do not think that more than the costs prescribed in Tariff B is warranted. I think that an appropriate amount of costs on a party and party basis for services of solicitors and counsel for the appellant, and the said disbursements, would be in the order of $1,200.00 in total for the two appeals, treating the appeals as Class II cases.
The Court therefore directs that the respond ent pay the appellant a fixed or lump sum total of $1,200.00 in lieu of taxed costs in these appeals.
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