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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shall, to the extent that they are not inconsistent with the provisions of this Act, remain in force until altered or rescinded or otherwise determined.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.
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