T-2704-94
BETWEEN:
GERALD'S MACHINE SHOP LIMITED
Plaintiff
- and -
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "MELINA & KEITH II"
Defendant
REASONS - TAXATION
F. Pilon
Taxing Officer
Mr. John Sinnott, the solicitor for the Plaintiff, presented his Bill of Costs for taxation on a party-and -party basis during a tele-conference held on September 18, 1997. Mr. Richard Rogers is acting on behalf of the Defendant. The trial of this action took place at St. John's, Newfoundland in May 1997. The Court ruled in favour of the Plaintiff with costs to be taxed and Defendant then filed a Notice of Appeal against the final Judgment of the Trial Division. As a preliminary matter Counsel argued the issue of whether or not it is premature to tax the Plaintiff's Bill of Costs at this stage.
Mr. Sinnott strongly opposed the adjournment of his client's costs until the hearing of the Appeal. He argues that his client has the right to have his costs taxed following the Judgment of the Trial Division. He indicates the Plaintiff had expended a lot of money to repair the Defendant's vessel and has not recovered anything to date. Mr. Sinnott further submits there are no rules nor Court orders to prevent the taxing of his Bill of Costs at this time and waiting for the decision of the Court of Appeal would in effect stay the payment of costs now due.
Mr. Rogers' position is that taxing the costs at this stage is premature on the basis his client has appealed the final Judgment and intends to proceed with the Appeal in a timely manner. Mr. Rogers indicates his preference for the Appeal hearing to be fixed in the late Fall of 1997 or shortly in the New Year. He further submits that the decision of the Trial Division is not final because the substantive issues are now pending before the Court of Appeal. I must concede that I have had great difficulty in reaching a conclusion on this preliminary matter of prematurity. This is a serious issue affecting the rights of both parties in the litigation. The three sources cited below have helped me decide in favour of the Defendant in adjourning this matter sine die. The first passage is from a decision of Taxing Officer Stinson in Robert Casden -v- Cooper Enterprises Ltd.:1
| "The Taxing Officer should have, in assessing accounts, the benefit of the final (by that, I mean that decision not subject to any further appeal) conclusion on the substantive issues generated by the action." |
I refer next to the Reasons for Order rendered by the Honourable Mr. Justice MacKay in "Dableh -v- Ontario Hydro" (T-1422-90) dated September 12, 1994. His Lordship refused to
stay an order for costs and added:
| "Though I find no basis for exercise of the Court's discretion to grant a stay, and thus ordered that the application be dismissed, I did urge counsel for the defendant to invite her client to consider not executing upon the order for costs made at trial when assessed, pending the outcome of an appeal prosecuted in a timely fashion by the plaintiff." |
Finally the provisions of Rule 1214, that part of the Federal Court Rules governing appeals from decisions of the Trial Division may help shed some light in the matter:
| "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" (Emphasis mine). |
I therefore conclude that the taxation of the Plaintiff's Bill of Costs be adjourned sine die and suggest that the successful party at the Appeal level be at liberty to contact the Registry at that time to arrange for the taxation of costs in both Divisions of the Court. In these circumstances a Certificate will not be issued.
Dated at Halifax, Nova Scotia this 1st day of October, 1997.
François Pilon
Taxing Officer
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: GERALD'S MACHINE SHOP LIMITED
- and -
The owners and all others interested in
the Ship "MELINA & KEITH II"
COURT NO.: T-2704-94
TAXATION OF COSTS WITHOUT PERSONAL APPEARANCE
TAXATION - REASONS OF:
FRANÇOIS PILON, TAXING OFFICER, dated October 1, 1997.
SOLICITORS OF RECORD:
Lewis, Sinnott, Heneghan
St. John's, NF
for the Plaintiff
Williams, Roebothan, McKay & Marshall
St. John's, NF
for the Defendant
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