Date: 19990212
Docket: T-371-96
BETWEEN:
MICHAEL JOSEPH McCORMICK,
Applicant,
- and -
THE ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] On January 6, 1999, the applicant filed a notice of motion pursuant to rule 369 of the Federal Court Rules, 1998, SOR/98-106, seeking an order pursuant to rule 397(1)(a) and (b) that the Court reconsider the terms of its order dated December 29, 1998, in which one-half party and party costs were awarded to the respondent.
[2] The pertinent parts of rule 397(1) read as follows:
| 397(1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the grounds that |
| (a) the order does not accord with any reasons given for it; or |
| (b) a matter that should have been dealt with has been overlooked or accidentally omitted. |
Applicant"s Position
[3] The applicant, Michael Joseph McCormick, argues that the Court"s order as to costs is deficient in that it is silent as to special reasons. The applicant argues that the new Rules, which became effective on April 25, 1998, do not apply in this matter because he began his application for judicial review in April 1996, and both parties had served and filed their documents under the old regime. He contends that former rule 1618 governs costs in this matter; that rule provided that no costs shall be payable in respect of an application for judicial review unless the Court, for special reasons, so orders.
[4] The applicant also argues that the rules of procedural fairness and natural justice were violated in that he was given no advance warning or notice by the respondent that it intended to seek costs. He contends that he was broadsided by the respondent when it sought costs at the close of its submissions at the hearing, and further that he was prejudiced in that his own submissions were completed and he was precluded from requesting costs.
Respondent"s Position
[5] The respondent argues that since its written representations were submitted under the old regime " and rule 1618 applied " it was unable to actively seek costs because the availability of costs awards in judicial review proceedings was severely restricted. The respondent also disputes the applicant"s contention that it had been uncooperative and caused delay so that the matter was not heard until after the new Rules came into force. Finally, the respondent requests that this motion for reconsideration be dismissed with costs.
Discussion
[6] The new Federal Court Rules, 1998 came into force on April 25, 1998; prior to that, rule 1618 stated that no costs would be payable on an application such as this judicial review, unless the Court, for special reasons, ordered otherwise. The new Rules " in particular, rule 400 et seq." gave the Court full discretionary power over the amount and allocation of costs, as well as the determination of by whom they are to be paid. A number of factors which the Court may consider when making such an award are listed in subsection 400(3); it should be noted that this list is by no means exhaustive of the factors which the Court may take into account.
[7] Part 14 of the Federal Court Rules, 1998 governs the transition from the former to the new Rules, and rule 501 is the key transitional provision. It provides that the new Rules govern all proceedings upon the coming into force of the new Rules:
| 501(1) Subject to subsection (2), these Rules apply to all proceedings, including further steps taken in proceedings that were commenced before the coming into force of these Rules. |
[8] In AIC Ltd. v. Infinity Investment Counsel Ltd. (1998), 148 F.T.R. 240 (T.D.), Mr. Justice Rothstein considered the effect of the new Rules on proceedings commenced under the old regime:
Rule 501(1) provides that prima facie, the new Rules should apply to the award of costs in proceedings commenced before the new Rules came into force but in which the award of costs takes place after the coming into force of the new Rules. Of course, Rule 501(1) should be interpreted not to affect rights accrued or liabilities incurred with respect to costs of the plaintiff"s motion prior to the old Rules ceasing to have effect. Such rights or liabilities could not arise until the Court dealt with the question of costs, which in this case was after the new Rules came into effect. I am satisfied that the new Rules apply to the award of costs in this case.
This passage was cited with approval and applied by Mr. Justice Gibson in Merck & Co. v. Novopharm Ltd. (T-1727-97, August 21, 1998). In that case, Mr. Justice Gibson found that no special reason exists to vary from the general principle stated by Mr. Justice Rothstein.
[9] This Court too is satisfied with that Mr. Justice Rothstein"s reasoning applies to this matter, and that the award of one-half party -and-party costs should stand. Accordingly, the applicant"s motion is dismissed with costs to the respondent.
Judge
Ottawa, Ontario
February 12, 1999