Date: 19980210
Docket: T-2473-93
BETWEEN:
RON ARCHIBALD
EDWIN CAWKWELL, WILLIAM COOPER, RICK DOBRANSKI,
DARREL ENGER, TIM HARVIE, MIKE JACKSON,
CONRAD JOHNSON, GORDON KELLER, WAYNE A. KRIZ,
DOUG MILLER, ART McELROY, BRIAN OLSEN,
PAUL S. ORSAK, BRIAN OTTO, JAMES M. PALLISTER,
KELLY S. PATRICK, DOUGLAS ROBERTSON,
GREG ROCKAFELLOW, BUCK SPENCER, WAYNE TUCK,
THE ALBERTA BARLEY COMMISSION, and
THE WESTERN BARLEY GROWERS ASSOCIATION,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and
THE CANADIAN WHEAT BOARD,
Defendants
Heard at Winnipeg, Manitoba, on February 9, 1998
Order delivered at Winnipeg, Manitoba, on February 10, 1998
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE MULDOON
Date: 19980210
Docket: T-2473-93
BETWEEN:
RON ARCHIBALD
EDWIN CAWKWELL, WILLIAM COOPER, RICK DOBRANSKI,
DARREL ENGER, TIM HARVIE, MIKE JACKSON,
CONRAD JOHNSON, GORDON KELLER, WAYNE A. KRIZ,
DOUG MILLER, ART McELROY, BRIAN OLSEN,
PAUL S. ORSAK, BRIAN OTTO, JAMES M. PALLISTER,
KELLY S. PATRICK, DOUGLAS ROBERTSON,
GREG ROCKAFELLOW, BUCK SPENCER, WAYNE TUCK,
THE ALBERTA BARLEY COMMISSION, and
THE WESTERN BARLEY GROWERS ASSOCIATION,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and
THE CANADIAN WHEAT BOARD,
Defendants
REASONS FOR ORDER
Muldoon, J.
[1] By notice of motion dated May 8, 1997, the plaintiffs apply for an order pursuant to Rule 337(5)(b) of the Federal Court Rules, C.R.C. 1978, c. 663, [incorrectly referred to by the plaintiffs as Rule 337.5(5)(b)] for reconsideration of the terms of Court's judgment with respect to the award of costs, on the basis that the counsel accidentally omitted to address this issue during trial.
[2] Judgment in this matter was rendered on April 11, 1997. The reasons for judgment in that matter concluded with the following brief paragraph:
| For the foregoing reasons, this Court dismisses the plaintiffs' action with costs payable by them in the defendants' favour. |
[3] The plaintiffs were unsuccessful in this action, and the order made to costs reflects the outcome.
[4] The issue of costs was not addressed by the parties. Counsel for the plaintiff did not indicate a wish to reconvene in order to consider the question of costs.
[5] In support of this motion, the plaintiffs submit an affidavit sworn by Bryan David Newton, counsel for the plaintiffs. In his affidavit, he deposes that on April 23, 1996, he had a conversation with Mr. Hay, counsel for the Minister on the issue of costs. Mr. Hay indicated that while he did not have instructions from his client on this position but that he would seek instructions from his client on that position. The plaintiffs did not hear back from counsel for the defendant on this issue and it was not addressed during case management. Counsel explains the inadvertence of dealing with the issue of costs on the fact that he was faced with the task of preparing rebuttals to five unanticipated expert reports provided by the defendants from August 16, 1996 onward. He also states that his perception of the conversation with Mr. Hay was that costs were no longer a matter of issue unless and until Mr. Hay advised him otherwise.
[6] Mr. Hay also indicates that he did not turn his mind to the issue of costs during his concluding oral submissions as he rushed to conclude due to the time constraints.
| Rule 337(5) states: |
| 337 (5) Within 10 days of the pronouncement of judgment under paragraph (2)(a), or such further time as the court may allow, either before or after the expiration of that time, either party may move the court, as constituted at the time of the pronouncement, to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others: |
| (a) that the pronouncement does not accord with the reasons, if any, that may have been given therefor: |
| (b) that some matter that should have been dealt with has been overlooked or accidentally omitted. |
| [Emphasis not in original] |
Jurisdiction of the Court to Vary an Award
[7] The plaintiffs argue that the jurisprudence on this rule appears to have developed in the context of consideration of circumstances where one party to a dispute committed an oversight, and not, as in this case, where both sides have committed an oversight. The plaintiffs rely on Yost v. Domtar Inc. et al, [1980] 2 F.C. 720 (C./A.) in which the Appeal Division of this Court amended a portion of its decision on the basis that the applicable version of the legislation at issue had been amended prior to trial. The party and the Court acted on the unamended version of the legislation, and motion was subsequently made by the respondent for reconsideration based on the error. At note 1 of the decision, found at page 721, the Court stated:
| This application by respondent is made pursuant to the provisions of Rule 335(5)(b) which permits the Court to reconsider the terms of a decision on the basis that a matter which should have been dealt with, has been overlooked or accidentally omitted. At the hearing before us of the section 28 application, counsel for the applicants handed up to the Court what was, in his submission, the applicable version of the Anti-Inflation Act, S.C. 1974-75-76, c. 75. It later transpired that section 20(4)(b) thereof had been amended and the amended section 20(4)(b) was the applicable section on the facts of this case. Neither counsel for the applicants nor counsel for the respondent advised the Court at the hearing, of this amendment, and the Court proceeded to pronounce judgment on the basis of the unamended section 20(4)(b). |
[8] Counsel erroneously believes that this case stands for the proposition that were it clear that both sides have acted in error, the error constitutes grounds for reconsideration by the Court. With respect, this proposition is incorrect. Rule 337(5) has been commonly described as the "slip rule". This rule is designed to provide the Court with a means of reconsidering the terms of its pronouncement if the Court, not the parties, has erred in some way.
[9] In general, both the Appeal and Trial Divisions of this Court have interpreted this Rule narrowly, emphasizing on the finality of judgments, yet providing the Court with a means to correct errors. In Polylok Corporation v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C./A.) Chief Justice Thurlow set forth the following proposition at page 719:
| These and the other sub-rules of Rule 337 which I have not repeated make up, as it appears to me, a code of rules relating to judgments and orders that deals comprehensively with the subject of their finality. |
At page 720 he added in regards to Rule 337(6):
| Having regard to the broad inherent authority exercised in times past by Courts to correct formal judgments or orders to make them accord with the judgment as pronounced or intended, it appears to me that this portion of the Rule should be given a scope which is broad enough to enable the Court to amend so as to make a judgment conform to what was intended when it was pronounced, but that it cannot and should not be used to authorize a judge to review or rescind his judgment or to alter it so as to reflect a change of mind as to what the judgment should have been. |
Heald J. concurred, and the third judge concurred in the result, which was that the trial (judgment) order as rendered was the dispositive judgment, and the purported amendment was held to be ineffectual, since the trial judge had not been shown to have erred in formulating the trial (judgment) order as rendered.
[10] Although Thurlow C.J. wrote in regard to Rule 337(6), the proposition is equally applicable to subsection (5) of that Rule.
[11] In Maligne Building Ltd. et al v. The Queen and Minister of the Environment of Canada, [1983] 2 F.C. 301 (T.D), Mr. Justice Dubé described Rule 337(5) in the following manner, at pages 304 to 305:
| The plain meaning of Rule 337(5) (the so-called "Slip Rule"), as I read it, is that the Court may reconsider the terms of its pronouncement if the pronouncement does not accord with the reasons given by the judge, or that some matter has been overlooked by the judge. In other words, if the Court has slipped in some technical matter it may take the necessary steps to correct the situation. The Slip Rule is not a vehicle to assist counsel in bringing something up after trial which he failed to do in the course of trial. It is axiomatic that there must be finality in judgments. I am reinforced in that position by an observation made very recently by my colleague Walsh J. in Carruthers v. The Queen [[1983] 2 F.C. 350 (T.D.).] wherein he said at page 354: |
| Rule 337(5) is precise, however, as to the grounds on which the pronouncement may be varied, including that some matter which should have been dealt with has been overlooked or accidentally omitted. It is difficult to conclude that a special direction respecting costs of an expert witness is something which was overlooked or accidentally omitted, as there is no requirement that the Court should decide whether such an order should be made when rendering judgment. |
| [Emphasis not in original] |
[12] In Stuart v. Canada, [1989] 27 F.T.R. 65 Madam Justice Reed expressed a similar view. In that case, Madam Justice Reed found that the plaintiff had suffered damage as a result of the defendant's breach of a duty of care owed to the plaintiff. The plaintiff herself however was found to be 80% contributorily negligent. The plaintiff was awarded $5,802.60 and her costs of the action. Subsequently, the defendant brought a motion under rules 337(5) and 344(7) for reconsideration of the cost award on the basis that an offer of settlement was made prior to trial. In dismissing the defendant's motion, Reed J. wrote at page 69:
| It seems to me that subs. (7)(a) contemplates the giving of directions to a taxing officer, within the confines of a judgment respecting costs which has been given but not the changing of that judgment itself. When no order of costs exists in the judgment which has been rendered, the situation may be different. What the defendant now seeks is not the giving of directions but the alteration of the judgment. I do not interpret the wording of subsection (7) as authorizing this kind of fundamental change. What is more rule 344(7) has to be read in the light of rule 337(5). |
| . . . |
| When rule 344(7) is read in the light of 337(5), it becomes clearer, in my view, that 344(7) was intended to allow for the giving of directions within the context of an award of costs already made but not the alteration of the award itself. |
[13] In Nordolm I/S v. Canada (1996), 107 F.T.R. 317 Mr. Justice Gibson was faced with motion on behalf of the applicant for reconsideration of the cost award (none was awarded) on the basis that the issue was not addressed by counsel during the course of a two week trial. Relying on Stuart, Mr. Justice Gibson held at page 319:
| No argument was made during the teleconference hearing of this motion that the pronouncement, that is to say the judgment in this matter, does not accord with the reasons. Further, I fail to see now I might conclude that some matter, that is to say the issue of costs, that should have been dealt with in the pronouncement was overlooked or accidentally omitted. In the absence of such an error, I conclude that rule 337(5) provides me with no jurisdiction to reconsider my judgment with respect to costs or to expand on, or otherwise vary, my reasons with respect to costs. I conclude that, in essence, counsel now seeks an opportunity to convince me that the terms of my judgment with respect to costs are simply wrong, or at least, inappropriate in all of the circumstances. Such an argument is proper subject matter for an appeal. It is not proper subject matter for a motion to vary. |
[14] This latter comment is important to the case at bar for two reasons. First, the plaintiffs have not provided argument as to how the judgment in this matter does not accord with the reasons. Gibson J. points out that the mere inadvertence on the part of counsel does not come within the ambit of Rule 337(5)(b), unless it can be established that the error in the part of counsel transcended into an error of the Court. The plaintiffs' counsel attempted to make such an argument, but it was obscure and failed to persuade. It was repudiated, too, by the defendants' counsel. A notice of appeal was filed on May 9, 1997 (A-364-97). As the matter is not one which properly comes within the ambit of Rule 337(5), it could be dealt with on appeal.
[15] Even if this Court could re-open and amend a pronounced judgment, as the plaintiffs ask it to do, their application herein would be virtually doomed in law, as lucidly set out in 1992 by the late Mr. Justice David C. McDonald, then of the Alberta Queen's Bench in Reese et al v. Alberta et al [1993] 1 W.W.R. 450. The passage at pp. 455-56 is particularly apt. Plaintiffs who sue purportedly in the public interest, but unsuccessfully, are not entitled to inflict the cost of the litigation upon the taxpayers. They are not immune from bearing the expenses they precipitated by Court action.
[16] For all the foregoing reasons, the plaintiffs' motion for reconsideration will be dismissed. Upon prompting by the Court (since the general rule is that costs follow the event) counsel on each side was stirred to state that his clients seek no costs in the present proceedings. So be it.
"F.C. Muldoon"
Judge
Winnipeg, Manitoba
February 10, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2473-93
STYLE OF CAUSE:
RON ARCHIBALD, EDWIN CAWKWELL, WILLIAM COOPER, RICK DOBRANSKI, DARREL ENGER, TIM HARVIE, MIKE JACKSON, CONRAD JOHNSON, GORDON KELLER, WAYNE A. KRIZ, DOUG MILLER, ART McELROY, BRIAN OLSEN, PAUL S. ORSAK, BRIAN OTTO, JAMES M. PALLISTER, KELLY S. PATRICK, DOUGLAS ROBERTSON, GREG ROCKAFELLOW, BUCK SPENCER, WAYNE TUCK, THE ALBERTA BARLEY COMMISSION, and THE WESTERN BARLEY GROWERS ASSOCIATION,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and THE CANADIAN WHEAT BOARD,
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 9, 1998
REASONS FOR ORDER
OF THE COURT: The Honourable Mr. Justice Muldoon
DATED: February 10, 1997
APPEARANCES:
Keith Groves for the Plaintiffs
Brian Hay for the Defendants
Dept. of Justice
Winnipeg, Manitoba
SOLICITORS OF RECORD:
Sugimoto & Company
Suite 204, West Atrium
2635 - 37 Avenue N.E. for the Plaintiffs
Calgary, Alberta
T1Y 5Z6
Mr. George Thomson, Q.C.
Deputy Attorney General of Canada for the Defendants
FEDERAL COURT OF TRIAL
Date: 19980210
Docket: T-2473-93
BETWEEN:
RON ARCHIBALD, EDWIN CAWKWELL, WILLIAM COOPER, RICK DOBRANSKI,
DARREL ENGER, TIM HARVIE, MIKE JACKSON,
CONRAD JOHNSON, GORDON KELLER, WAYNE A. KRIZ, DOUG MILLER, ART McELROY, BRIAN OLSEN, PAUL S. ORSAK, BRIAN OTTO, JAMES M. PALLISTER, KELLY S. PATRICK, DOUGLAS ROBERTSON, GREG ROCKAFELLOW, BUCK SPENCER, WAYNE TUCK, THE ALBERTA BARLEY COMMISSION, and THE WESTERN BARLEY GROWERS ASSOCIATION,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and THE CANADIAN WHEAT BOARD,
Defendants
REASONS FOR ORDER