Date: 20020524
Neutral citation: 2002 FCT 597
Ottawa, Ontario, this 24th day of May, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
FIRST CANADIANS' CONSTITUTION DRAFT COMMITTEE
THE UNITED KOREAN GOVERNMENT (CANADA)
Plaintiff
- and -
HER MAJESTY THE QUEEN in right of CANADA
Defendant
[1] This is a motion by the plaintiff appealing the order of Prothonotary Aronovitch dated April 19, 2002 wherein the Prothonotary awarded costs against the plaintiff in the amount of $500.
Background
[2] The plaintiff brought the original statement of claim to claim monetary damages from the Crown based on a variety of grounds.
[3] By order of the Prothonotary dated January 19, 2002, the statement of claim was struck without leave to amend and the action was dismissed. This order was not appealed. The Prothonotary ordered that the parties were to agree as to the costs of the motion and any dispute could be dealt with by written submissions.
[4] The parties were unable to agree as to the costs of the defendant's motion, so the matter was returned to the Prothonotary. On April 19, 2002, the Prothonotary ordered that the costs of the motion be fixed in the sum of $500, including disbursements, payable by the plaintiff to the defendant forthwith.
[5] This is a motion brought by the plaintiff to appeal the order of the Prothonotary dated April 19, 2002.
Issue
[6] Did the Prothonotary make a reviewable error with respect to the cost order of April 19, 2002?
Applicable Legislation
[7] Rule 51(1) of the Federal Court Rules, 1998 states:
| 51. (1) An order of a prothonotary may be appealed by a motion to a judge of the Trial Division. |
51. (1) L'ordonnance du protonotaire peut être portée en appel par voie de requête présentée à un juge de la Section de première instance. |
Analysis and Decision
[8] Standard of Review
In Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 at 463, McGuigan J.A. set out that discretionary orders of prothonotaries ought not to be disturbed unless such orders are clearly wrong such as being based upon a wrong principle or upon a misapprehension of the facts or where they raise questions vital to the final issue of the case. If a question was raised that goes to the final issue of the case, the matter should be heard de novo.
[9] McGuigan J.A. stated at pages 462 to 463:
I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourciere J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
And at pages 464 - 465:
In Canada v. "Jala Godavari" (The) (1991), 40 C.P.R. (3d) 127 (F.C.A.), this Court in an obiter dictum stated the rule the other way around, seeking to emphasize the necessity for the exercise of the Judge's discretion de novo, in contradistinction to the view that was at that time gaining acceptance in the Trial Division that the prothonotary's discretion should be followed unless he had committed error of law. Jala Godavari should not, I think, be read as meaning that the prothonotary's discretion should never be respected, but rather that it is subject to an overriding discretion by a judge where the question involved is vital to the final issue of the case. (Error of law is, of course, always a reason for intervention by a judge, and is not in any way in controversy).
Now, in the case at bar, what kind of interlocutory order was in question? The appellant urged this Court to follow Stoicevski, but was unable to explain in argument why the prothonotary's decision here was not on a question vital to the final issue of the case. The formulations both of Lord Wright and Lacourciere J.A. underline the contrast between "routine matters of pleading" (Lord Wright) and "a routine amendment to a pleading" (Lacourciere J.A.) [italics added] and questions vital to the final issue of the case, i.e., to its final resolution.
The question before the prothonotary in the case at bar can be considered interlocutory only because the prothonotary decided it in favour of the appellant. If he had decided it for the respondent, it would itself have been a final decision of the case: A-G of Canada v. S.F. Enterprises Inc. et al. (1990), 90 DTC 6195 (F.C.A.) at pages 6197-6198; Ainsworth v. Bickersteth et al., [1947] O.R. 525 (C.A.). It seems to me that a decision which can thus be either interlocutory or final depending on how it is decided, even if interlocutory because of the result, must nevertheless be considered vital to the final resolution of the case. Another way of putting the matter would be to say that for the test as to relevance to the final issue of the case, the issue to be decided should be looked to [page 465] before the question is answered by the prothonotary, whereas that as to whether it is interlocutory or final (which is purely a pro forma matter) should be put after the prothonotary's decision. Any other approach, it seems to me, would reduce the more substantial question of "vital to the issue of the case" to the merely procedural issue of interlocutory or final, and preserve all interlocutory rulings from attack (except in relation to errors of law).
[10] In Stoicevski v. Casement, 43 O.R. (2d) 436 (Ont. C.A.), Lacourciere J.A. wrote:
One of the arguments presented by Mr. Goudie, and adopted by White J. in his dissenting judgment in the Division Court, was that the learned local judge arrived at his decision in the exercise of his judicial discretion and consequently his order ought not to have been disturbed by the Divisional Court unless it was clearly wrong. I agree that this test (adopted by Southey J. in Marleen Investments Ltd. v. McBride et al. (1979), 23 O.R. (2d) 125, 13 C.P.C. 221, following the language of Chancellor Boyd in Adamson v. Adamson et al. (1888), 12 P.R. (Ont.) 469 is the appropriate one where an appeal is taken from an interlocutory order involving matters such as a change of venue, a jury notice or a routine amendment to a pleading. However, it was recognized by Southey J., in Marleen Investments, supra, that some interlocutory rulings which raise questions vital to the final issue of the case require a rehearing in which the judge's discretion may properly be substituted for that of the master or local judge. The present appeal clearly falls within the latter category. An amendment which may have the effect of reducing the plaintiff's quantum of recovery of damages is clearly vital to the final issue. I would not give effect to this ground of appeal.
This is the appeal of an order with respect to costs, which is the final issue of the case, and accordingly, I should exercise my discretion de novo.
[11] The defendants submitted the following bill of costs, prepared pursuant to Tariff B, Column II of the Federal Court Rules, 1998:
| Item |
Description |
Units |
Sub-Total |
Total |
| 5 |
Preparation and filing of a contested motion, including materials and response thereto |
4 |
$440.00 |
|
| 6 |
Appearance on motion, per hour (December 18, 2001, 1.5 hrs.) |
1.5 |
165.00 |
|
| 25 |
Services after judgment not otherwise specified |
1 |
110.00 |
|
| Sub-Total Fees |
715.00 |
$715.00 |
||
| Disbursements: |
||||
| - Service and filing of Notice of Motion |
60.00 |
|||
| - Service and filing of Defendant's Motion Record |
42.06 |
|||
| Sub-Total Disbursements |
102.06 |
102.06 |
||
| Total Fees and Disbursements |
$817.06 |
[12] Rule 400 of the Federal Court Rules, 1998 reads as follows:
| 400. (1) The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid. (2) Costs may be awarded to or against the Crown. (3) In exercising its discretion under subsection (1), the Court may consider (a) the result of the proceeding; (b) the amounts claimed and the amounts recovered; (c) the importance and complexity of the issues; (d) the apportionment of liability; (e) any written offer to settle; (f) any offer to contribute made under rule 421; (g) the amount of work; (h) whether the public interest in having the proceeding litigated justifies a particular award of costs; (i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding; (j) the failure by a party to admit anything that should have been admitted or to serve a request to admit; |
400. (1) La Cour a entière discrétion pour déterminer le montant des dépens, les répartir et désigner les personnes qui doivent les payer. (2) Les dépens peuvent être adjugés à la Couronne ou contre elle. (3) Dans l'exercice de son pouvoir discrétionnaire en application du paragraphe (1), la Cour peut tenir compte de l'un ou l'autre des facteurs suivants: a) le résultat de l'instance; b) les sommes réclamées et les sommes recouvrées; c) l'importance et la complexité des questions en litige; d) le partage de la responsabilité; e) toute offre écrite de règlement; f) toute offre de contribution faite en vertu de la règle 421; g) la charge de travail; h) le fait que l'intérêt public dans la résolution judiciaire de l'instance justifie une adjudication particulière des dépens; i) la conduite d'une partie qui a eu pour effet d'abréger ou de prolonger inutilement la durée de l'instance; j) le défaut de la part d'une partie de signifier une demande visée à la règle 255 ou de reconnaître ce qui aurait dû être admis; |
| (k) whether any step in the proceeding was (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; (l) whether more than one set of costs should be allowed, where two or more parties were represented by different solicitors or were represented by the same solicitor but separated their defence unnecessarily; (m) whether two or more parties, represented by the same solicitor, initiated separate proceedings unnecessarily; (n) whether a party who was successful in an action exaggerated a claim, including a counterclaim or third party claim, to avoid the operation of rules 292 to 299; and (o) any other matter that it considers relevant. (4) The Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs. (5) Where the Court orders that costs be assessed in accordance with Tariff B, the Court may direct that the assessment be performed under a specific column or combination of columns of the table to that Tariff. |
k) la question de savoir si une mesure prise au cours de l'instance, selon le cas: (i) était inappropriée, vexatoire ou inutile, (ii) a été entreprise de manière négligente, par erreur ou avec trop de circonspection; l) la question de savoir si plus d'un mémoire de dépens devrait être accordé lorsque deux ou plusieurs parties sont représentées par différents avocats ou lorsque, étant représentées par le même avocat, elles ont scindé inutilement leur défense; m) la question de savoir si deux ou plusieurs parties représentées par le même avocat ont engagé inutilement des instances distinctes; n) la question de savoir si la partie qui a eu gain de cause dans une action a exagéré le montant de sa réclamation, notamment celle indiquée dans la demande reconventionnelle ou la mise en cause, pour éviter l'application des règles 292 à 299; o) toute autre question qu'elle juge pertinente. (4) La Cour peut fixer tout ou partie des dépens en se reportant au tarif B et adjuger une somme globale au lieu ou en sus des dépens taxés. (5) Dans le cas où la Cour ordonne que les dépens soient taxés conformément au tarif B, elle peut donner des directives prescrivant que la taxation soit faite selon une colonne déterminée ou une combinaison de colonnes du tableau de ce tarif. |
[13] The Prothonotary's decision does not state why the amount of $500 was set, but my review of the relevant factors listed above lead me to the conclusion that the amount of costs awarded to the defendant should not be disturbed by me. The Prothonotary had the authority to set a fixed amount for costs. Further, when you consider the factors listed in Rule 400(3), and in particular, the fact that the defendant won its motion, I find that the Prothonotary exercised her discretion in a correct and proper manner.
[14] Accordingly, I would deny the plaintiff's motion (appeal).
[15] The plaintiff suggested that costs could not be received by the Crown. That is no longer the law.
[16] As well, the plaintiff suggested that the Prothonotary did not have jurisdiction to make any award in this proceeding as the amount claimed exceeds $50,000. The cost order of April 19, 2002 was made as part of a successful motion to strike by the defendants pursuant to Rule 221 of the Federal Court Rules, 1998. I take Rule 50(2) of the Federal Court Rules, 1998 to limit the Prothonotary to hearing matters where the amount claimed exceeds $50,000. The Prothonotary did not hear the action - she struck the statement of claim pursuant to Rule 221.
[17] The plaintiff also argued that costs should not be awarded against them as they were impecunious. I am not satisfied that this is a ground to deny costs based on the facts of this case.
[18] The plaintiff argued that the defendant should have provided written proof to the plaintiff that the Prime Minister instructed counsel to take the legal steps taken in this case. I do not accept this position.
[19] The plaintiff argued that the defendant has no right to use Rule 221(1) unless the defendant first satisfied its obligations under Rules 203, 204(a), 208, 209 and 210(1). I need not deal with this argument as this matter is not under appeal in this motion. Only the award of costs has been appealed.
ORDER
[20] IT IS ORDERED that the motion (appeal) of the plaintiff is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 24, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1626-01
STYLE OF CAUSE: FIRST CANADIANS' CONSTITUTION
DRAFT COMMITTEE
THE UNITED KOREAN GOVERNMENT (CANADA)
- and -
HER MAJESTY THE QUEEN in right of CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Thursday, May 2, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Mr. Michael K. B. Hahn
FOR PLAINTIFF
Ms. Monika Lozinska
FOR DEFENDANT
SOLICITORS OF RECORD:
Mr. Michael Hahn
c/o Unity & Seniors Canada Building
1808 - 445 Richmond Road
Ottawa, Ontario
K2A 3W6
FOR PLAINTIFF
Department of Justice
2nd Floor, East Memorial Building
284 Wellington Street
Ottawa, Ontario
K1A 0H8
FOR DEFENDANT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020524
Docket: T-1626-01
BETWEEN:
FIRST CANADIANS' CONSTITUTION
DRAFT COMMITTEE
THE UNITED KOREAN GOVERNMENT (CANADA)
Plaintiff
- and -
HER MAJESTY THE QUEEN
in right of CANADA
Defendant
REASONS FOR ORDER AND ORDER