T-442-88
Robert Casden (Plaintiff)
v.
Cooper Enterprises Ltd., Cooper Yachts Ltd.,
John Forbes Cooper, Dan Thain and the 60 Foot
Custom Maple Leaf Pilothouse Sailboat Hull No.
CEL 6000 2A787 (Defendants)
INDEXED AS: CASDEN V. COOPER ENTERPRISES LTD. (T.D.)
Trial Division, Stinson T.O.—Vancouver, Febru-
ary 20 and May 3, 1991.
Practice — Costs — Taxation —, Judgment in principal
action directing each party to pay own costs — Appeal out
standing — Defendants awarded costs on three motions
brought after trial judgment — Orders not providing for
payment forthwith — Taxation premature in view of R. 1214
— Accounts relating to "interlocutory" proceedings — Trial
judgment not superseding principle of one taxation of costs in
relation to cause of action — Taxing Officer entitled to benefit
of final (decision not subject to further appeal) conclusion on
substantive issues — Costs of interlocutory proceedings tax
able at conclusion of action — Awarded forthwith after taxa
tion only in extraordinary circumstances as where motion
devoid of merit.
The defendants presented for taxation three bills of costs in
respect of orders made subsequent to judgment in an action.
The plaintiff objected that taxation would be premature
because the orders followed a judgment directing each side to
bear its own costs, they did not direct payment forthwith, and
there was an outstanding appeal. Plaintiff relied on Orkin's The
Law of Costs in asserting that the defendants must wait until
final disposition of the appeal. It was submitted that to allow
taxation of these accounts would create a precedent for a
multiplicity of taxations in an action. The defendants argued
that there were no rules of practice, case law or orders preclud
ing immediate taxation. Their submission was that the cases
relied upon by the plaintiff were distinguishable in that they
addressed interlocutory decisions which necessarily occurred
prior to trial. They urged that notwithstanding the appeal, the
trial judgment was operative, and therefore there has been final
disposition of the action, extinguishing all interlocutory awards
of "costs in the cause". The defendants further argued that, in
the absence of a stay of execution for costs pending appeal, the
accounts were payable. The plaintiff replied that "interlocuto-
ry" means "not final" and there was no authority for restricting
its meaning to matters before trial. It was argued that the
orders were interlocutory because they addressed matters which
were other than the final adjudication of the substantive issues
generated by the action. Determination of the preliminary
objection thus turned on the meaning of the word
"interlocutory".
Held, the objection should be sustained.
The authority of a judgment of the Trial Division should not
supersede or vary the established and practical principle that
one taxation of costs should occur in relation to the cause of an
action. The Taxing Officer should have, in assessing accounts,
the benefit of the final (meaning the decision not subject to any
further appeal) conclusion on the substantive issues generated
by the action. Upon an analysis of Rule 1214 (which provides
that Part III of the Rules, dealing with costs, applies "as
though the appeal were a continuation" of the "proceeding in
which the judgment appealed against was given") it appeared
that taxation would be premature. Costs awarded on interlocu
tory proceedings should be taxed with any other taxation that
might follow the conclusion of the action. Costs of an interlocu
tory motion should be awarded forthwith after taxation only in
extraordinary circumstances such as where a motion was so
frivolous that it ought not to have been brought forward.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 52.
Federal Court Rules, C.R.C., c. 663, RR. 1006(2)(e),
1214.
CASES JUDICIALLY CONSIDERED
APPLIED:
Sibo Inc. v. Posi-Slope Enterprises Inc., T-2449-83,
Jerome A.C.J., order dated 21/3/85, F.C.T.D., not report
ed; Centaur Cycle Co. v. Hill (1902), 4 O.L.R. 92 (C.A.).
DISTINGUISHED:
IBM Canada Ltd. v. Xerox of Canada Ltd., [1977] 1
F.C. 181; (1976), I2 N.R. 440 (C.A.); Allied Collection
Agencies Ltd y Wood, [1981] 3 All ER 176 (Q.B.D.).
CONSIDERED:
Casden v. Cooper Enterprises Ltd. et al. (1990), 34
F.T.R. 241 (F.C.T.D.); Casden v. Cooper Enterprises
Ltd., T-442-88, Collier J., judgment dated 2 4 / 7 /90,
F.C.T.D., not yet reported; Casden v. Cooper Enterprises
Ltd., T-442-88, Cullen J., judgment dated 26/9/90,
F.C.T.D., not yet reported; Eastern Canada Towing Ltd.
v. The Algobay, [1980] 2 F.C. 366 (T.D.); Maple Leaf
Lumber Co. v. Caldbick and Pierce (1918), 14 O.W.N.
99 (App. Div.); Leonard v. Wharton (1921), 20 O.W.N.
440 (H.C.); Rossiter v. Toronto R.W. Co. (1907), 11
O.W.R. 189; Paulson v. Murray (1922), 32 Man. L.R.
327; 68 D.L.R. 643; [1922] 2 W.W.R. 654 (K.B.);
Leonard v. Burrows (1904), 7 O.L.R. 316 (C.A.); Justik
v. Brosseau (1979), 9 Alta. L.R. (2d) 89; 9 C.P.C. 97
(App. Div.); United Church of Can. Trustees v. Teale
(1979), 11 C.P.C. 167 (N.S.C.A.); Canadian National
Railway Co. et al. v. Norsk Pacific Steamship Co. Ltd.
and Tug "Jervis Crown" et al. (1990), 113 N.R. 4
(F.C.A.).
REFERRED TO:
Ford v. C.N.R., [1937] 2 W.W.R. 216 (Sask. C.A.);
Banke Electronics Ltd. v. Olvan Tool & Die Inc.
(1981), 32O.R. (2d) 630; 21 C.P.C. 231 (H.C.).
AUTHORS CITED
Black's Law Dictionary, 6th ed., St. Paul, Minn.: West
Publishing Co., 1990 "interlocutory", "interlocutory
decision", `final", "final appealable order or judg
ment", `final decision or judgment", "final disposi
tion", "final hearing", `final judgment", "interlocuto-
ry judgment", `judgment".
Canadian Encyclopedic Digest. Western, vol. 9, 3rd ed.,
Toronto: Carswell Co. Ltd., 1981, § 272.
Halsbury's Laws of England, vol. 26, 4th ed., London:
Butterworths, 1979, paras. 504, 505, 506; vol. 37, 4th
ed., London: Butterworths, 1982, para. 713.
Jowitt's Dictionary of English Law, vol. 1, 2nd ed., by
John Burke, London: Sweet & Maxwell Ltd., 1977,
"interlocutory".
Orkin, Mark M. The Law of Costs, 2nd ed. Aurora,
Ontario: Canada Law Book Inc., Loose Leaf Ed.,
1990-91.
Osborne, P.G. A Concise Law Dictionary, 5th ed.,
London: Sweet & Maxwell, 1964, "interlocutory
order","interlocutory proceeding".
Stroud's Judicial Dictionary of Words and Phrases, vol.
3, 4th ed. by John S. James, London: Sweet & Max-
well Ltd., 1973, "interlocutory order".
The Canadian Law Dictionary 1980, "final", `final
judgment", "interlocutory".
COUNSEL:
David F. McEwen for plaintiff.
Frits E. Verhoeven for defendants.
SOLICITORS:
McEwen, Schmitt & Co., Vancouver, for
plaintiff.
Edwards, Kenny & Bray, Vancouver, for
defendants.
The following are the reasons for taxation ren
dered in English by
STINSON T.O.: Defendants present three bills of
costs for taxation on a party and party basis. One
bill is for the defendant Cooper Enterprises Ltd.
only. The Honourable Mr. Justice Walsh ruled on
the distinction in law between the various defend
ants [(1990), 34 F.T.R. 241 (F.C.T.D.)], at pages
274-276. Defendants' solicitor signs documents on
their behalf collectively. I have taken the bills of
costs as presented collectively on behalf of the
defendants.
Plaintiff made a preliminary objection that this
taxation was premature. These bills, relating to
orders dealing with delivery of the defendant vessel
as a consequence of judgment, are for amounts
that pale in significance next to the dollars
associated with the substantive issues of the action.
At taxation, I expressed surprise that the parties
had not settled these accounts. Counsel indicated
that it was the principle that was important here.
The action addressed problems arising out of the
construction of a 60-foot fibreglass sailing yacht
by defendant Cooper Enterprises Ltd. for plaintiff.
After plaintiff had invested several hundred thou
sand dollars, he refused to accept delivery of the
vessel because he believed it was unfit for his
purposes. Walsh D.J. (page 252) noted that
defendants had not profited by receipt of said
monies because all had been spent on the construc
tion itself and a balance for extras was still owed.
Walsh D.J. alluded to the considerable expense for
both sides of the litigation itself (pages 242-243)
i.e. numerous motions, over 1,100 pages of discov
ery transcript, 29 days of trial. Plaintiff sought
(page 242) "to repudiate and rescind the contract"
for construction to avoid being compelled to accept
delivery of the vessel. Defendants sought a require
ment, on terms relating to further work and out-
standing expenses, that plaintiffs accept delivery of
the vessel. The judgment of Walsh D.J. dated
June 6, 1990 read:
The contract dated November 21, 1985 for the construction of
the Maple Leaf 60 yacht for Plaintiff has not been cancelled
nor can it be rescinded, the vessel now being substantially fit
and suitable for ocean cruising and chartering for which it was
intended.
Defendants Cooper Enterprises Ltd. and/or Cooper Yachts Ltd.
are directed to commence forthwith whatever further work is
necessary to fully complete the vessel, including installation of
the specially designed mirror and navigation equipment
acquired by Plaintiff for the vessel and now in Defendants'
possession, unless he prefers the return of same to him, to
complete sea trials when they are ready for same at which Dr.
Casden or his representative may be present if he so desires,
provided that this does not delay the sea trials, and to make any
adjustments or alterations indicated as necessary by these sea
trials.
This must be accomplished within 6 weeks of the date of this
judgment at which date the vessel must be tendered to Plaintiff
for delivery upon payment by him of $30,000 (U.S.) which sum
shall be in settlement of all claims whether by Plaintiff for
damages or by Defendants for extras installed to date or
otherwise, save for sharing of insurance costs provided for by
interlocutory judgment dated January 25, 1990.
Should Plaintiff require any further extras or changes, these
need only be done by Defendants if they agree to do so and
agree with Plaintiff as to the price which will be payable in
advance, and only if this work will in no way delay the
completion and delivery of the vessel after sea trials within the
aforementioned 6 week period.
No personal judgment is rendered against Defendants John
Forbes Cooper or Dan Thain.
Each party shall pay his or their own costs.
Plaintiff filed an appeal which remains outstand
ing.
Plaintiff sought a stay of execution against that
portion of the judgment requiring payment of
$30,000 (U.S.). On July 24, 1990, the Honourable
Mr. Justice Collier ordered:
1. Execution of the judgment of Walsh, J., dated June 6, 1990,
against the plaintiff for $30,000 (U.S.)(on the tendering of the
vessel by the defendants), is stayed, pending the outcome of the
appeal, on the following terms:
(a) The plaintiff shall pay into court to the credit of this
action, the sum of $30,000 U.S. dollars or
(b) Shall post security in this action, in the form of a bond,
guarantee, or other financial document in the sum of $30,000
U.S. The bond, guarantee or other financial document shall
be in a form satisfactory to the District Administrator of this
Court at Vancouver, B.C.
2. The plaintiff shall have 30 days from the date of the
tendering of the vessel to comply with paragraphs 1(a) or (b) of
this order. The vessel shall, however, not be turned over to the
plaintiff, nor released from arrest, until the terms of paragraph
(a) or (b) have been complied with.
3. There are no costs of this motion to any party.
That same day, his Lordship dismissed defendants'
application for a show cause order for contempt
but gave them costs of the motion after taxation.
Defendants present an account for $181.46.
Plaintiff then sought orders for a reference as to
whether the defendant vessel was in deliverable
condition and for directions as to care and custody
of said vessel from its deliverable date to the date
of disposition of the outstanding appeal. On Sep-
tember 26, 1990 [T-442-88, not yet reported], the
Honourable Mr. Justice Cullen refused to order a
reference, refused to issue directions except to give
liberty to defendants to tender the vessel to plain
tiff and to assign responsibility for said vessel,
after delivery, to plaintiff, and directed payment of
the $30,000 security forthwith and awarded costs
of the motion to the defendants. Defendants
present an account for $148.
Defendants then sought an order for release
from arrest of the vessel after the Registry had
refused to issue a release under Rule 1006(2)(e)
[Federal Court Rules, C.R.C., c. 663]. On Octo-
ber 25, 1990, the Honourable Mr. Justice Strayer
granted the application with costs to the defend
ants who present an account at $142.
The key issue, according to plaintiff, is the lack
of any right to tax these accounts at this time
because the three orders occurred after a judgment
directing each side to bear its own costs, said
orders did not provide for payment forthwith and
there is an outstanding appeal. Plaintiff relied on
The Law of Costs, (2nd ed.) 1990-91, Mark M.
Orkin, Q.C., chapter 4, section 402 at pages 4-2
and 4'-3 to assert that, as these orders did not
require payment forthwith, defendants must wait
until final disposition of the appeal because "a
requirement that costs of a motion be payable
forthwith may prevent a meritorious action from
coming to trial and, of lesser importance, it is
preferable to have only one assessment of costs in
an action at which time all aspects of the litigation
can be considered by the assessment officer." In
relying on this text, plaintiff submitted that I
should consider disposition of the appeal in the
same context as disposition at trial, that is, the
final disposition of the issues raised by the action.
In that sense, these three orders precede said final
disposition and therefore the three related
accounts are not yet eligible for taxation. Plaintiff
referred to two cases cited in the Orkin text rein
forcing the above-stated principle that, in the
absence of a requirement to pay costs forthwith,
taxation and payment of said costs must await
final disposition of the substantive issues of the
action: Ford v. C.N.R., [1937] 2.W.W.R. 216
(Sask. C.A.), at pages 217-218 and Banke Elec
tronics Ltd. v. Olvan Tool & Die Inc. (1981), 32
O.R. (2d) 630 (H.C.). To allow defendants to tax
these three accounts would be tantamount to
creating precedent for a multiplicity of taxations in
the course of an action.
In reply, defendants argued that there are no
Rules of Court or practice, applicable cases or
orders precluding immediate taxation. Plaintiff's
cases are distinguishable because they address
interlocutory decisions which necessarily occur
prior to trial. Defendants took no issue with the
principle that taxation of interlocutory awards of
costs should await final trial. However, notwith
standing an outstanding appeal, the judgment of
Walsh D.J. is operative, there has been no stay of
execution and therefore there has been final dispo
sition of the action extinguishing all interlocutory
awards of "costs in the cause" and presumably
(not asserted by defendants in their argument)
now permitting taxation of interlocutory or other
wise awards of "costs" in any event of the cause.
These three accounts relate to post-judgment mat
ters and therefore it is the plaintiff who should
have requested special directions to delay taxation.
Defendants asserted that I should rely on the
jurisprudence of this Court, even if not addressed
specifically to the issue before me, for matters of
practice as opposed to plaintiff's cases from other
jurisdictions. Defendants cited Walsh J. (as he
then was) in Eastern Canada Towing Ltd. v. The
Algobay, [1980] 2. F.C. 366 (T.D.) addressing a
motion for special directions as to costs relating to
a motion in the Trial Division for moderation of
bail. The Honourable Mr. Justice Mahoney, P.C.,
had heard this interlocutory motion for bail,
reduced the bail and awarded costs in the cause.
The owners appealed and the other parties cross-
appealed. By judgment dated December 11, 1979,
the appeal was allowed with costs in both Courts,
the cross-appeals were dismissed with costs, the
order of Mahoney J. (as he then was) was set
aside, the appellant's application in the Trial Divi
sion was granted and bail was further reduced. At
page 367, Walsh J. concluded that said judgment
varied the award of costs by Mahoney J. "so that
the successful appellants became entitled to have
their bill of costs taxed forthwith."
Defendants relied on IBM Canada Ltd. v. Xerox
of Canada Ltd., [1977] 1 F.C. 181 (C.A.). This
decision addressed a bill of costs for an interlocu
tory motion in the Trial Division. The Honourable
Mr. Justice Urie wrote for the Court at pages
183-184:
Counsel for the appellant indicated from the outset that he
was not attacking the quantum of the bill as taxed or any
particular item or items therein, but was challenging the right
of the respondents to tax its bill at this stage of the proceedings
or, in other words, he argued that the taxation was premature.
The order of the Trial Division dismissed the appellant's motion
"with costs". Similarly, the appellant's appeal from that order
was dismissed "with costs". Counsel's argument, as I under
stand it, was that the expression "with costs" must mean "with
costs to the Plaintiff in the cause". He argued that if this were
not so the learned Trial Judge who heard the motion would
have made some other disposition of the costs such as "costs to
the Plaintiffs in any event of the cause" or "costs forthwith
after taxation thereof'. Since no such direction was given, he
submitted that the costs must follow the final outcome of the
litigation and since the action has not yet come to trial, there
has been no determination of the issues between the parties and
thus the bill cannot yet be taxed.
This argument is not supported by what I deem to be the
correct interpretation of Rule 344(1), irrespective of the mean
ing attributed to the phrase "with costs". The applicable por
tion of that Rule reads as follows:
(1) The costs of and incidental to all proceedings in the
Court shall be in the discretion of the Court and shall follow
the event unless otherwise ordered. [The emphasis is ours.]
Clearly this definition does not exclude an interlocutory pro
ceeding and since the word "action" was not used in Rule
344(1), the phrase "shall follow the event unless otherwise
ordered" must mean in this instance, "shall follow the result of
each interlocutory proceeding unless otherwise ordered". If I
am correct in this view, since in neither the order of the learned
Trial Judge nor the order of this Court was there a disposition
of the costs in a contrary manner, the costs were to follow the
result of the interlocutory motion and subsequent appeal. In
each case the appellant lost and thus the respondents were
entitled to tax their bill of costs following the dismissal of the
motion and subsequently their costs on the appeal ....
and defendants asserted that the principle enun
ciated, although referring to provisions for costs no
longer in force, has not been varied in the jurispru
dence. Finally, defendants relied upon the Canadi-
an Encyclopedic Digest, Western (3rd ed.), vol. 9,
1981, pages 38-107, § 272, which read, in part,
that the "court may order a stay of execution for
costs pending an appeal", to assert that, in the
absence here of such a stay and regardless of an
outstanding appeal, the three accounts are taxable
and payable now.
In rebuttal, plaintiff argued that the term
"interlocutory" simply means "not final" and
there is no authority to restrict its meaning to
matters before the trial. The three orders in issue
are interlocutory because, given an outstanding
appeal, they address matters which are other than
the final adjudication of the substantive issues
generated by the action. The cases in the Canadian
Encyclopedic Digest are not applicable as they
appear to relate to final dispositions. The Eastern
Canada Towing Ltd. and Xerox cases revolved
about significantly different facts and, more
importantly, Rules which were removed and
replaced by others incorporating radical changes
particularly with regard to the phrase "shall follow
the event unless otherwise ordered". The Honour
able Mr. Justice Stone in reasons issued on March
30, 1990 in Canadian National Railway Co. et al.
v. Norsk Pacific Steamship Co. Ltd. and Tug
"Jervis Crown" et al. [(1990), 113 N.R. 4
(F.C.A.)] dealt with an application to remove
tariff limits, noted a number of cases under the old
Tariff addressing said point, quoted from one
enunciating the relevant principle before the old
Rules were displaced and concluded (at page 6)
"[t]hat position appears to have been displaced by
the 1987 revision of the Federal Court Rules, for
those Rules now provide much greater latitude for
allowing costs beyond the maximum amounts
specified in Tariff B." Plaintiff argued that said
conclusion, by extension, precluded reliance on
defendants' cases based as they were on signifi
cantly changed legislation (I cannot help but note
that this argument cuts both ways: the underlying
legislation for plaintiff's cases might not duplicate
our present legislation).
Finally, defendants argued that the three orders
addressed the fate of a vessel which has been
released, had responsibility for its care and custody
assigned and has been delivered. Any relief that
the Court of Appeal could give would not change
that history. Plaintiff asserted that said proposition
was untenable because, by it, every decision
becomes final and irreversible. Here, a key issue
for the Court of Appeal will be whether the vessel
should have been delivered.
At taxation, I indicated that my inclination was
to reserve on the preliminary objection and defer
submissions on the particulars of the accounts.
Plaintiff concurred particularly given the lack of a
supporting affidavit. Defendants, however, wished
to proceed and, as it was their taxation, I received
their submissions on the particulars. Given my
disposition below, there is no need to outline them.
MY CONCLUSIONS
My first inclination was to factor into my anal
ysis a consideration of whether acceptance of
plaintiff's proposition would constitute, in effect,
stay of execution of the operation of a judgment: a
remedy or effect normally beyond the jurisdiction
of any Taxing Officer. I rejected that inclination.
The issue here revolves solely about the meaning to
be given the term "interlocutory". If I affirm
plaintiff's proposition, the principles in the juris
prudence are clear, save as discussed below, and
require that I refuse to tax as there has not
effectively been final adjudication of the substan
tive issues raised by the action.
Interlocutory and final judgments can exhibit
different and significant procedural implications
for litigants i.e. different time limits to appeal,
different rights of appeal (that is, whether leave is
required). I raise this only to demonstrate that
legal systems have not casually conceived the dis
tinction, by means of the terms "final" and "inter-
locutory", between decisions of a court. Defend
ants' position, in effect, would create yet another
characterization of decisions neither "final" nor
"interlocutory" and I considered carefully whether
I should affirm said position. The term "interim"
is sometimes used to describe decisions of specified
and limited duration but they are essentially still
interlocutory in nature.
With respect, I have difficulty with the conclu
sion noted above in Eastern Canada Towing Ltd.
(that appellants could tax forthwith) because, as I
see it, the Court of Appeal simply exercised its
jurisdiction under subparagraph 52(b)(i) of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10] to change the result of an interlocutory pro
ceeding but in such a manner as not to disturb the
ordinary practice and principles applicable to such
proceedings. In particular, the Court of Appeal did
not provide for payment of costs forthwith in the
Trial Division and Walsh J. noted the Court of
Appeal "made no special direction". Therefore, I
do not understand the basis for a conclusion effec
tively varying, for this particular interlocutory pro
ceeding i.e. the motion for moderation of bail, the
common practice of delaying taxation until final
judgment. As for the Xerox case, I think it impor
tant to note that, in stating at page 184 that "the
respondents were entitled to tax their bill of costs
following the dismissal of the motion", the Court
was not addressing the point in time at which a bill
of costs for an interlocutory proceeding may be
taxed but rather was simply affirming, by use of
the phrase "tax their bill of costs", an entitlement
in law to costs. I think that I am on solid ground in
so surmising given Urie J.A.'s characterization of
the issue (page 183) before the Court. His Lord
ship said that the appellant asserted taxation was
premature because of the meaning to be given the
term "with costs". Appellants apparently argued
that the meaning of said term was bound up in the
final outcome of litigation and, as no trial had yet
occurred and therefore no entitlement to costs
contingent on the cause yet existed, taxation was
premature. The problem before Urie J.A. did not
resemble mine in that I am not asked to affirm an
entitlement to costs. § 272 of the Canadian Ency
clopedic Digest cited three cases as footnotes:
Maple Leaf Lumber Co. v. Caldbick and Pierce
(1918), 14 O.W.N. 99 (App. Div.); Leonard v.
Wharton (1921), 20 O.W.N. 440 (H.C.); and
Rossiter v. Toronto R.W. Co. (1907), 11 O.W.R.
189. In the first, there had been judgment at the
trial and appellate levels. One of three plaintiffs
had an outstanding appeal to the Supreme Court
of Canada and defendants sought to tax and retain
costs against the other two. The Court concluded
that, as costs are an indemnity and not a debt due
between litigants, the right to costs was contingent
upon the appeal. An order went requiring payment
into Court of the costs pending the appeal (that is,
the result might vary the entitlement to costs as
against the other two plaintiffs). In the second, a
similar result occurred but in relation to a refer
ence. As well, in the third, a similar result
occurred. These cases effectively suggest that taxa
tion to crystallize amount may occur prior to the
disposition of appeal but that effective execution
for said dollars must await the outcome of appeal.
That principle predates the cases noted above in
The Law of Costs, allows litigants to put one
another to potentially unnecessary costs in proving
accounts and, assuming that a normal right of
review exists, exposes the Court to unnecessary
expenditures of its time in resolving challenges to
taxed costs. I assume that the Ontario courts in
the later cases were aware of but did not follow the
implied principle in the earlier cases from these
two texts.
I noted the following authorities: Halsbury's
Laws of England (4th ed.) 1979, Butterworths,
vol. 26, page 240, paragraph 506:
506. Interlocutory judgments and orders. An order which does
not deal with the final rights of the parties, but either (1) is
made before judgment, and gives no final decision on the
matters in dispute, but is merely on a matter of procedure, or
(2) is made after judgment, and merely directs how the decla
rations of right already given in the final judgment are to be
worked out, is termed "interlocutory".
An interlocutory order, even though not conclusive of the
main dispute, may be conclusive as to the subordinate matter
with which it deals.
The phrase "interlocutory judgment" is also used to describe
a judgment for damages to be assessed. [Footnote references
deleted.]
Jowitt's Dictionary of English Law (2nd ed.),
John Burke, 1977, vol. 1, page 999:
Interlocutory. A proceeding in an action is said to be inter
locutory when it is incidental to the principal object of the
action, namely, the judgment. Thus, interlocutory applications
in an action include all steps taken for the purpose of assisting
either party in the prosecution of his case, whether before or
after final judgment; or of protecting or otherwise dealing with
the subject-matter of the action before the rights of the parties
are finally determined; or of executing the judgment when
obtained. Such are applications for time to take a step (e.g., to
deliver a pleading), for discovery, for an interim injunction, for
the appointment of a receiver, for obtaining a garnishee order,
etc. So an order giving a plaintiff leave to sign judgment is
interlocutory, because he must sign judgment before he can
issue execution. The question whether an order is interlocutory
is of importance with reference to the time during which it may
be appealed against ....
A Concise Law Dictionary (5th ed.) P. G. Osborn,
1964, page 172:
interlocutory order. While a final order determines the rights
of the parties an interlocutory order leaves something further to
be done to determine those rights. (Ord. 58, r. 4 notes).
interlocutory proceeding. One taken during the course of an
action and incidental to the principal object of the action,
namely, the judgment. Thus, interlocutory applications in an
action include all steps taken for the purpose of assisting either
party in the prosecution of his case; or of protecting or other
wise dealing with the subject-matter of the action, or of execu
ting the judgment when obtained.
Stroud's Judicial Dictionary of Words and
Phrases (4th ed.) John S. James, 1973 vol. 3, page
1410:
(6) "Interlocutory order" (Judicature Act 1873 (c. 66), s.
25(8)) was not confined to an order made between writ and
final judgment, but meant an order other than final judgment;
and, therefore, a receiver might be appointed under that section
after final judgment ....
The Canadian Law Dictionary Datinder S. Sodhi
pub. R.S. Vasan ed. 1980, page 199:
interlocutory: Provision; temporary; not final; a proceeding,
order or judgment taken, made or pronounced between the
commencement and the final disposition of an action. However,
in certain exceptional cases, application made after final judg
ment is given in the action may be considered as an interlocuto
ry application. The term `interlocutory' may be applied to
applications made to satisfy, by equitable execution or other
wise, the judgment obtained. See Paulson y Murray (1922) 68
D.L.R. 643 (Man.) and Leonard y Burrows, (1904) 7 O.L.R.
316 (C.A.).
I noted the exception in The Canadian Law Dic
tionary and read the Paulson [Paulson v. Murray
(1922), 68 D.L.R. 643 (K.B.)] case cited. With
respect, the statement of principle in the former
seems inconsistent with the conclusions in the
latter. In Paulson, the headnote (page 643) and
the analysis of contempt proceedings (pages 646
and 649) suggest that to not characterize applica
tions made after final judgment is given in the
action as interlocutory would be the exception as
opposed to the proposition in the Canadian Law
Dictionary. I had the same reaction to Leonard v.
Burrows [(1904), 7 O.L.R. 316 (C.A.)].
Generally, the authorities cited by me appear to
undercut defendants' position. In so concluding, I
recognize that they are based on varied legislation
and practice in a number of different jurisdictions.
I can ignore them if circumstances so warrant i.e.
if the facts are distinguishable or the principle to
be applied is shown to be faulty. Here, I surmise
that plaintiff's intention, by his appeal, is to not
remain in possession of the vessel. Although that
portion of the judgment requiring further work by
defendants may be, for practical purposes, ir
reversible if the work was actually performed, the
effort represented by said work could be quantified
for the purposes of a credit, if appropriate, should
the appeal be successful. In all other respects, the
terms of the judgment could be reversed. Plain
tiff's cases and my series of excerpts suggest that
the three accounts before me relate to interlocuto
ry proceedings and therefore their taxation would
be premature. However, I was bothered by the fact
that the various authorities did not specifically
address the distinction in terms of finality, if any,
between a judgment at trial disposing of all sub
stantive issues generated by the action as opposed
to a judgment by the last possible appellate Court
disposing, once and for all whether by confirming,
reversing or setting aside the lower Court's judg
ment in whole or in part, of all substantive issues
generated by the action. I looked again at the
authorities specifically for the terms "final" and
"judgment" and further noted:
Halsbury's Laws of England, supra, vol. 26, pages
238-239:
504. Final and interlocutory judgments and orders. There is no
definition in the Judicature Acts or the rules of court made
under them of the terms "final" and "interlocutory", and a
judgment or order may be final for one purpose and interlocu
tory for another, or final as to part and interlocutory as to part.
It is impossible to lay down principles about what is final and
what is interlocutory. It is better to look at the nature of the
application and not at the nature of the order eventually made.
In general, orders in the nature of summary judgment where
there has been no trial of the issues are interlocutory. It is in
relation to the issue of a bankruptcy notice and to appeals to
the Court of Appeal that the question whether a judgment is
final or interlocutory usually arises.
505. Final judgments and orders. In general a judgment or
order which determines the principal matter in question is
termed "final". A final judgment has been defined as "a
judgment obtained in an action by which a previously existing
liability of the defendant to the plaintiff is ascertained or
established" and as "a judgment obtained in an action by which
the question whether there was a pre-existing right of the
plaintiff against the defendant is finally determined in favour
either of the plaintiff or of the defendant". A final order is none
the less final by reason that it is subject to appeal, and a
judgment may be final even though it directs inquiries, or deals
with costs only, or is made on an interlocutory application, or
reserves liberty to apply.
Although a judgment dismissing the plaintiff's action is final,
it may be accompanied by a direction that the dismissal is to be
without prejudice to the plaintiff's right to bring another
action. Formerly, where an order was made dismissing an
action unless within a specified time the plaintiff took a certain
step, and the plaintiff failed to do so, the action was held to be
at an end, but in modern cases the court takes a more liberal
view. The reasoning behind the old cases is that the time limit
is included in the order which has been passed and entered and
such an order cannot be recalled. By the order the action is
dismissed and at an end. The modern view is that the court has
an inherent jurisdiction and also power under rules of court to
extend the time within which a person is required to do any act
in any proceedings. If an order stipulates a time within which a
person is required or authorised to do such an act the court has
power to extend the time. [Footnote references deleted.]
The Canadian Law Dictionary, supra, page 149:
final: Last, conclusive. See Final Judgment.
final judgment: The decision of the court which completely
determines all the disputes between the parties before it and
sets at rest the cause of action. The term `final' in this
context does not mean that all legal remedies are exhausted
but only that, as far as the court that is passing the judgment
is concerned, the matter is at an end. If there is a superior
court empowered to review the `final judgment' of the inferi
or court, the judgment may be appealed.
The term may be defined as meaning any judgment, rule,
order or decision whereby an action, suit, cause, matter or
other judicial proceeding is finally determined and conclud
ed.
This last excerpt supports defendants' position but
I note that it links "final" to the Court in which
the judgment is given and not to the Court giving
that "final" judgment disposing once and for all of
the substantive issues of the action. The other texts
contained references to "final", "judgment" or
"final judgment" but did not add anything. How-
ever, I did examine Black's Law Dictionary (6th
ed.), 1990 under the headings "Interlocutory" and
"Interlocutory decision" (page 815); "Final",
"Final appealable order or judgment", "Final
decision or judgment", "Final disposition" and
"Final hearing" (pages 629-630) and the subhead
ings "Final judgment" and "Interlocutory judg
ment" (page 843) within "Judgment" (page 841).
They did not tend to support a conclusion that
"final" as opposed to "interlocutory" should refer
exclusively to the decision by the last possible
appellate court on the substantive issues of the
action. An additional passage from Halsbury's
Laws of England, supra, does not clarify this issue.
Volume 37 paragraph 713, page 548 re: Jurisdic
tion to award costs addresses "forthwith" in rela
tion to unrepresented litigants. Footnote no. 11
(page 549) suggests no specific direction is neces
sary to tax an interlocutory matter forthwith. The
case cited therein, Allied Collection Agencies Ltd
y Wood, [1981] 3 All ER 176 (Q.B.D.), addressed
the difference in meaning between the phrases
"with costs" and "costs in any event of the cause"
and concluded that the former had effectively
acquired, in exceptional circumstances, the special
characteristic of entitlement to immediate taxa
tion. The Court, in an obiter comment, lamented
(page 181) the necessity for this conclusion and
called for a change in the Rules so as to prescribe
the form of order for instances warranting
immediate taxation. I am not aware of jurispru
dence, and in particular since the amendment in
1987 [SOR/87-221] to our Rules and Tariff, in
this Court attributing the special characteristic,
"forthwith", to the phrase "with costs" as opposed
to "costs in any event of the cause". Overall, the
authorities placed me in a quandary because, from
the technical perspective of the Court in which it
was given, the judgment of Walsh D.J. would
appear to trigger the right to tax the interlocutory
proceedings including those in issue before me (on
this latter point, the authorities clearly preclude
creation of some new and third characterization of
judgments in addition to "final" and "interlocuto-
ry"). I hesitate to suggest that the powers of the
Court of Appeal under section 52 of the Federal
Court Act [R.S.C., 1985, c. F-7] mean that the
judgment of Walsh D.J. is not final because there
is nothing in the legislation to invoke an automatic
stay pending appeal at the instant of delivery of
said judgment. Counsel did not raise it before me,
but I noted Rule 1214:
Rule 1214. The attorney or solicitor on the record and the
address for service of a party on an appeal from the Trial
Division shall continue to be the same as they were in the
proceeding in which the judgment appealed against was given
and, for these and similar purposes, Parts I, II and III are
applicable to such an appeal as though the appeal were a
continuation of that proceeding.
and, in particular, its concluding clause relating to
Part III of the Rules being applicable "as though
the appeal were a continuation" of the "proceeding
in which the judgment appealed against was giv
en." Part III of the Rules contains the provisions
for costs in this Court. With all due respect to the
authority carried by a judgment of the Trial Divi
sion, I cannot conclude that said authority should
supersede or vary the established and, in my view,
practical principle that one taxation of costs
should occur in relation to the cause of an action.
That is, the Taxing Officer should have, in assess
ing accounts, the benefit of the final (by that, I
mean that decision not subject to any further
appeal) conclusion on the substantive issues gener
ated by the action. Given my analysis of Rule
1214, I conclude that defendants' presentation of
these accounts is premature. In so concluding, I
had in mind several cases, from other jurisdictions,
not cited above. I did not cite them because they
set out contradictory positions and I was already
satisfied that no universal principle had crystal
lized. For example, in Justik v. Brosseau (1979), 9
Alta. L.R. (2d) 89, at page 90, the Alberta
Supreme Court (Appellate Division) concluded
(January 16, 1979) that the term "costs" is au-
thority, without the necessity for "forthwith" to
appear in the order, to tax and receive said costs
immediately. In United Church of Can. Trustees
v. Teale (1979), 11 C.P.C. 167, at page 168, the
Nova Scotia Supreme Court (Appeal Division)
cited the Orkin text in concluding (June 22, 1979)
that costs are payable before the end of a case only
if specifically ordered to be paid forthwith. I felt
that the Associate Chief Justice enunciated, on
March 21, 1985 in T-2449-83 Sibo Inc. v. Posi-
Slope Enterprises Inc., at page 2 [of the supple
mentary reasons for order]:
Awarding of costs upon an interlocutory motion forthwith after
taxation is, at least in my experience, extraordinary. I would
only consider it in cases where a motion is frivolous or without
merit to such an extent that it ought not to have been brought
forward. Otherwise, it would be expected that costs awarded on
interlocutory proceedings be taxed together with any other
taxation that might follow the conclusion of the action. It is
usually expressed as "costs to the Plaintiff in any event of the
cause", a phrase which normally accompanies this kind of order
but which I failed to add in this case.
Costs will therefore go to the plaintiffs in any event of the
cause so that taxation will take place at the time the parties tax
any other costs following the conclusion of the action.
(not specifically addressing the variable of an out
standing appeal), the preferred and practical prin
ciple. I simply extended that logic to embrace the
concept of "conclusion of the action" as conclusion
without further remedies by way of appeal. Said
extension of logic is consistent with a case cited in
Rossiter, supra, page 190 [Centaur Cycle Co. v.
Hill (1902), 4 O.L.R. 92 (C.A.), at page 95] in
which judgment had been entered in the lower
Court and said judgment was characterized as
"not yet ... final . .., the appeal being a step in
the cause".
I cannot issue a certificate of taxation that I
have taxed the bills of costs and allowed them at
nil dollars because I have no jurisdiction to tax
said accounts at this time. Thus, I have simply
issued a certificate to the effect that plaintiff's
preliminary objection to taxation of the three
accounts was allowed.
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.