Judgments

Decision Information

Decision Content

T-5185-78
Eastern Canada Towing Limited (Plaintiff)
v.
The Ship Algobay and her owners and the Ship Cielo Bianco and her owners (Defendants)
Trial Division, Walsh J.—Montreal, January 14; Ottawa, January 21, 1980.
Practice — Costs — Motion to include half of disburse ments for expert evidence re value of vessel in support of motion to reduce bail and other half of disbursements in other action proceeding simultaneously — Bail bond reduced in other action but "costs ... in the cause" — Appeal allowed with "costs in both Courts" — Taxation of costs allowed before trial — Federal Court Rule 344(7).
MOTION. COUNSEL:
M. de Man for plaintiff.
G. Barry for defendants the Ship Cielo
Bianco and her owners.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb, Montreal, for plaintiff.
McTaggart, Potts, Stone & Herridge, Toronto, for defendants the Ship Algobay and her owners.
McMaster Meighen, Montreal, for defendants the Ship Cielo Bianco and her owners.
The following are the reasons for order ren dered in English by
WALSH J.: This is a motion for special direc tions as to costs pursuant to Rule 344(7) seeking an order that there be included in the taxable bill of costs in each of this action and an action proceeding simultaneously bearing Court No. T-5213-78 between Algoma Central Railway v. The "Cielo Bianco" in which a similar motion was made, an amount equivalent to half of the dis bursements incurred by the ship Cielo Bianco and her owners in respect of the expert evidence adduced as to the value of the said vessel in support of a motion for moderation of bail. A bail
bond had been filed in the amount $5,500,000 and the motion was made for moderation of bail in both actions. In connection with these motions an appraiser was retained and paid the sum of $500 for his affidavit of valuation and a further sum of $750 for professional services in preparation for cross-examination on the affidavit, and a marine surveyor was paid $212. It is these amounts which the motions seek to recover by special direction as to taxation, no additional fees above the Tariff amounts being sought.
Mahoney J. heard the motion and by an order dated January 15, 1979 reduced the bail to $4 million concluding that "Costs of the application ... be in the cause". As a result there would therefore be no taxation until after the trial and no special order for taxation under Rule 344(7) was made in Mahoney J.'s order. This decision of Mahoney J. was appealed by the Ship Cielo Bianco and her owners and cross appeals were brought by Eastern Canada Towing Limited and Algoma Central Railway respectively. By judg ment of the Court of Appeal dated December 11, 1979, the appeals were allowed "with costs in both Courts, the cross appeals being dismissed with costs" and the bail bond was further reduced to $3,000,000. Appeal costs are taxed in the Trial Division. The Appeal Court judgment varied the order of the Trial Division that costs should be in the cause by awarding costs to the appellants both in the Court of Appeal and in the Trial Division, so that the successful appellants became entitled to have their bill of costs taxed forthwith. In making its decision the Court of Appeal made no special direction pursuant to Rule 344(7), and it is un likely that it would have done so since taxation of costs is left with the Trial Division. It is true that Rule 344(7) provides that "An application under this paragraph in the Court of Appeal shall be made before the Chief Justice or a judge nominat ed by him but either party may apply to a Court composed of at least three judges to review a decision so obtained" but, as counsel for appellants points out no attempt is being made to increase in any way the costs in the Appeal Court, but what is sought is only the allowance of what he considers to be proper and necessary disbursements made in
connection with the motion in the Trial Division, which is a matter for the Trial Division to decide. In the normal course of events pursuant to the order in the Trial Division this would have been dealt with by the judge hearing the trial on the merits, but would only become an issue in the event that appellants were successful in their defences to the action. The effect of the judgment of the Court of Appeal has been to advance the date for this determination and to make it a matter to be determined whether or not appellants are eventually successful on the merits.
The situation is unusual and the Rules leave something to be desired in determining how to deal with it. It would appear that the amounts claimed are not unreasonable nor unjustified, in view of the successful outcome of the application to reduce the bail which in the end result was substantially reduced from $5,500,000 to $3,000,000. Normally a decision to make a special direction as to costs pursuant to Rule 344(7) would be made by the judge who heard the matter, but in the unusual circumstances of this case where the matter now has to be dealt with forthwith, rather than await ing the outcome of the trial, I believe it would be appropriate for me to deal with the matter and I will direct that these disbursements be included in the taxation of the bill of costs.
ORDER
Pursuant to Rule 344(7) there shall be included in the taxation of the bill of costs herein on the motion to reduce bail one-half of the sums payable to Gibson Shipbrokers Limited of $500 for valua tion of the Cielo Bianco, $750 payable to Gibson Shipbrokers Limited for professional services in preparation for cross-examination of its witness on an affidavit, and $212 to R. MacDonald, Marine Officer, the other half of said amounts to be included in taxation of the bill of costs in file number T-5213-78, Algoma Central Railway v. The "Cielo Bianco".
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.