Date: 20000925
Docket: A-152-00
CORAM: DÉCARY J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
- and -
ROBERT KING
Respondent
Heard at Halifax, Nova Scotia, on Monday, September 25, 2000.
Judgment delivered from the Bench on Monday, September 25, 2000.
REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A.
Date: 20000925
Docket: A-152-00
PRESENT: THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE MADAM JUSTICE SHARLOW
THE HONOURABLE MR. JUSTICE MALONE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
- and -
ROBERT KING
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Halifax, Nova Scotia
on Monday, September 25, 2000)
Malone J.A.
| [1] This is an appeal from an order of Justice Pelletier sitting in Chambers. In the order dated February 11, 2000 the respondent was awarded costs on a solicitor-and-client basis. |
| [2] Two general principles arise from the cases cited by the parties. The first principle is that solicitor-and-client costs are generally awarded only when there has been reprehensible, scandalous and outrageous conduct during litigation1 (emphasis added). The second is that pursuant to Rules 400 (1) and (6) the presiding judge has full discretionary power over the amount and allocation of costs (including solicitor-and-client costs) and the determination of by whom they are to be paid. |
| [3] In this case, the Chambers Judge awarded solicitor-and-client costs based on the conduct of the Veterans Appeal Board ("the Board") which failed to follow an earlier court order. At paragraph 28 of his reasons the Chambers Judge stated: |
"With the greatest respect for the Board this is not what they were called upon to
do. It is unfortunate that the Board did not seek directions if it was unclear as to
| what MacKay J.'s order required it to do. In the end result, the review of entitlement which MacKay J. ordered did not occur." |
| [4] He went on at paragraph 35: |
| "In view of the fact that Mr. King might have been spared the expense of this application had Mackay J.'s order been complied according to its terms, Mr. King shall have his costs of this application on a solicitor-and-client basis." |
| [5] In exercising his discretion under Rule 400 the Chambers Judge was entitled to consider a number of the factors outlined in Rule 400 (3) including the result of the proceeding before the Board. Clearly, Justice Pelletier was of the view that the Board's handling of this case was cumbersome and unfair to the respondent. |
| [6] Overall, we are not persuaded that a legal error has been committed in the exercise of discretion below. The appeal will be dismissed with costs to the respondent. |
"B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:A-152-00
STYLE OF CAUSE:The Attorney General of Canada
- and -
Robert King
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: September 25, 2000
REASONS FOR JUDGMENT OF: Malone, J.A.
DATED: September 25, 2000
APPEARANCES:
| Lori Rasmussen for Appellant |
Scott Fowler for Respondent
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
| 5251 Duke Street, Halifax, NS for Appellant |
Fowler & Fowler
Moncton, NB
| E1C 8M9 for Respondent |
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20000925
Docket: A-152-00
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
- and -
ROBERT KING
Respondent
REASONS FOR JUDGMENT
Date: 20000925
Docket: A-152-00
HALIFAX, NOVA SCOTIA, MONDAY THE 25th DAY OF SEPTEMBER, 2000.
PRESENT: THE HONOURABLE MR. JUSTICE DÉCARY
THE HONOURABLE MADAM JUSTICE SHARLOW
THE HONOURABLE MR. JUSTICE MALONE
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
- and -
ROBERT KING
Respondent
JUDGMENT
The Appeal is dismissed with cost.
"Robert Décary"
J.A.
__________________