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A-47-78
Federal Business Development Bank (Respond- ent) (Plaintiff)
v.
The Ship Saturna Maid and Kenneth Kinnaird (Appellants) (Defendants)
Court of Appeal, Jackett C.J., Urie J. and Kelly D.J.—Vancouver, March 29, 1979.
Practice — Taxation of costs — Appeal from Trial Divi sion's confirmation, under Rule 1007(8), of a taxation disal lowing marshal's bill of costs — Item in dispute computed in accordance with British Columbia Supreme Court Rules which allowed a sheriff a percentage of sum realized — Decision to disallow concerned with issue of marshal receiving fee allowed sheriff — Only one Court and one class of officer to imple ment its decisions — Rule 1007(8) only for correction of errors in taxation — Court's discretionary power exercised pursuant to s. 9 of Tariff A — Trial Division judgment and the taxation it dealt with overturned, and matter referred to District Administrator for re-taxation — Federal Court Rule 1007(8), Tariff A, ss. 7, 9 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 13(4).
APPEAL.
COUNSEL:
D. E. McEwen for respondent (plaintiff).
T. P. O'Grady, Q.C. for appellants (defend-
ants).
SOLICITORS:
Ray, Wolfe, Connell, Lightbody & Reynolds,
Vancouver, for respondent (plaintiff).
T. P. O'Grady, Q.C., Victoria, for appellants
(defendants).
The following are the reasons for judgment delivered orally in English by
JACKETT C.J.: This is an appeal from a judg ment of the Trial Division confirming the taxation of a marshal's bill of costs on a review thereof under Rule 1007(8).
The only item in dispute is a claim for $4,000 computed in accordance with paragraph 2(c) of Schedule 2 of Appendix C to the British Columbia Supreme Court Rules, which allowed to a sheriff 10 per cent of the sum realized in respect of "Arrest or Execution on Goods and Chattels".
This item was claimed by virtue of Tariff A in the Federal Court Rules which provides inter alia under the heading "Sheriff":
7. A sheriff may take and receive for a service rendered by him the fee or allowance permitted by law for a like service in the superior court of the province in which the service was rendered.
The claim was disallowed, as such, by reason of the decision of the Trial Division in the Xanadu case (T-3709-73) (August 9, 1974) where Collier J. expressed the opinion, in effect, that section 7 has no application where a sheriff is claiming in respect of duties performed by him pursuant to a Rule in which the duty is expressed to be imposed on a "marshal". In my view, section 7 applies to a sheriff when he is claiming in respect of the performance of duties whether the Rule imposing the duties refers to him as "sheriff" or "marshal".
Historically, the admiralty jurisdiction of the Federal Court can be traced back to the High Court of Admiralty in England in which the offi cer whose duty it was to carry out decisions of the Court was known as a "marshal". Otherwise, the constitution of the Court is patterned on that of earlier courts in which the Court's decisions were carried out by officers known as "sheriffs". For obvious reasons, both terms have been carried into the Federal Court Act and Rules in a manner that is somewhat lacking in a logical consistency. However, by virtue of section 13(4) of the Act, "Every sheriff of the Court is ex officio a marshal of the Court ...". In my view, this means quite simply that "Every sheriff . .. is ... a marshal"'. In other words, there is only one court and one class of officer to implement its decisions. Duties that are, in terms, assigned to a "marshal" are, in my opinion, in law, assigned to a sheriff. When, therefore, a sheriff is authorized to "take ... for a service rendered by him" a certain fee, the author ity is to take such fee whether the service is rendered by him under a provision referring to him as a sheriff or a provision referring to him as a marshal. I should be sorry to reach any other
' In my view "ex officio" is not an adjective by which the provision makes a sheriff an "ex officio marshal" but is an adverb indicating that being a marshal is incidental to being a sheriff. Compare Black's Law Dictionary where "ex officio" is defined to mean "... by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office."
result as I regard section 7 as being of fundamen tal importance. When different fees are fixed by provincial authorities for the same class of services rendered in different provinces, it is to be assumed that there are reasons therefor and sheriffs should not be expected to perform such services for the Federal Court without being paid what they would be paid if they had performed the services for the provincial courts.
The question does not arise on this appeal as to how the sheriff's bill of costs would have been taxed if section 7 had been applied. Inasmuch as the taxation proceeded on the basis that section 7 did not apply, in my view, the matter should go back to the District Administrator for a complete ly new taxation.
With regard to a taxation where section 7 is invoked, it should not be overlooked that section 9 provides a safeguard against absurd results. That section reads:
9. Notwithstanding sections 7 and 8, the fee or allowance or fee for realization on execution, or "poundage", that may be taken and received by a sheriff may be increased or decreased in the discretion of the Court on the application thereto of any interested party.
However, if there is to be an application under section 9, it should, I suggest, be made before the new taxation takes place, as an order made there- under would be one of the factors on which the taxation would be based and the purpose of the review under Rule 1007(8) is to correct errors in the taxation and not to afford an opportunity to a party to seek to have the Court exercise its discre tionary powers 2.
I am, therefore, of opinion that the appeal should be allowed, that the judgment of the Trial Division and the taxation of the sheriff's costs that is the subject thereof should be set aside and that the matter should be referred back to the District Administrator for re-taxation of the sheriff's account.
* * *
URIE J. concurred.
* * *
KELLY D.J. concurred.
2 Cf Smerchanski v. M.N.R. [1979] 1 F.C. 801.
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