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A-264-78
Bensol Customs Brokers Limited, D. H. Gros- venor Incorporated, Neuchatel Swiss General In surance Company Limited (Plaintiffs)
v.
Air Canada (Defendant)
Court of Appeal, Jackett C.J., Heald and Ryan JJ.—Ottawa, September 20, 1979.
Practice — Application to review taxation of costs of appeal to Court of Appeal from Trial Division — Paragraph 2(I)(d) and (e) of Tariff B applies to the preparation for and conduct of the "hearing" of an appeal, whether the appeal is from a final or interlocutory judgment of the Trial Division, but does not apply to an interlocutory or other application in the Court of Appeal — Taxation to be set aside and referred back to the Taxing Master for re-taxation on basis that costs being taxed are costs of appeal and not of an interlocutory application — Federal Court Rules 324, 346(2), Tariff B, s. 2(1)(d),(e).
APPLICATION in writing under Rule 324. COUNSEL:
Gerald P. Barry for plaintiffs. Jean E. Clerk for defendant.
SOLICITORS:
McMaster, Meighen, Montreal, for plaintiffs.
Giard, Gagnon, Clerk & Perron, Montreal, for defendant.
The following are the reasons for judgment rendered in English by
JACKETT C.J.: This is a Rule 324 application in writing under Rule 346(2) to review a taxation of costs in this Court (the Court of Appeal) awarded by a judgment of this Court [[1979] 2 F.C. 575] reversing a judgment of the Trial Division [[1979] 1 F.C. 167] which, determining a question of law, held that the appellants' action for damages had to be dismissed for lack of jurisdiction.
From the Taxing Officer's Report and the sub missions of the parties, it would appear that the question of substance raised by this application arises out of what I said in reasons delivered on
December 5, 1977, in Smerchanski v. M.N.R. (unreported, A-53-72), the relevant part of which is as follows:
This is an application to review the taxation of costs allowed upon the dismissal of a motion to fix the costs which had been awarded upon the dismissal of certain tax appeals....
On the taxation of the costs awarded on the interlocutory motion, the taxing officer allowed $350 for preparation for hearing and $400 for conduct of hearing under paragraph 2(1)(d) and (e) of Tariff B to the Rules. In our view, these items refer to preparation for, and conduct of, the "hearing" of the appeal, section 28 application or other substantive matter that was before the Court and not to a "hearing" of an interlocutory or other incidental application. In our view, the fee provided for by paragraph 2(1)(c) covers preparation for, and conduct of, a "hearing" in such an interlocutory or inciden tal application.
What I failed to make clear in that case was that paragraph 2(1) (d) and (e) of Tariff B applies to preparation for, and conduct of, the "hearing" of an appeal, whether the appeal is from a final or interlocutory judgment of the Trial Division, but do not apply to an interlocutory or other applica tion in the Court of Appeal. In that case the costs in question were costs of an interlocutory applica tion in the Court of Appeal. The costs in question here are costs of an appeal to the Court of Appeal from the Trial Division. (While it would not appear to be relevant, that appeal was, in my view, an appeal from a final judgment.)
I am of opinion that the taxation should be set aside and the matter should be referred back to the Taxing Master for re-taxation on the basis that the costs being taxed are costs of an appeal and not costs of an interlocutory application and that the applicant should have the costs of this application, which is an interlocutory application.
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HEALD J. concurred.
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RYAN J. concurred.
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