Federal Court of Appeal Decisions

Date: 19971124

Docket: A-234-96

BEFORE:      DENAULT J.A.

BETWEEN:      SIM & McBURNEY,

     Appellant

     - and -

     BUTTINO INVESTMENTS INC./ LES INVESTISSEMENTS BUTTINO INC.

     - and -

     THE REGISTRAR OF TRADE-MARKS

     Respondents

     REASONS FOR ORDER

[1]      The Respondent company, whose business and counsel are located in Montreal, is seeking an Order permitting its counsel to claim five hours of travelling time for having attended at the hearing of an appeal in Ottawa, in accordance with item 24 of Tariff B and Rule 344 of the Rules of this Court.

[2]      The Respondent is entitled to its costs by virtue of a judgment of this Court rendered on September 30, 1997 dismissing the appeal with costs. Pursuant to Rules 344 and 346, the power to grant costs rests with the Court but the taxation of these rests with a taxing officer. I hereby reproduce the pertinent parts of these Rules:

344. (1)      The Court shall have full discretionary power over payment of the costs of all parties involved in any proceeding, the amount and allocation of those costs and determining the persons by whom they are to be paid.

...

(3)      In exercising its discretionary power pursuant to subsection (1) the Court may consider

(a) the result of the proceeding;

...

(c) the importance of the issues;

...

(i) the volume of the work;

(j) the complexity of the issues;

(k) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(l) the denial of or the neglect or refusal of any party to admit anything that should have been admitted;

(m) whether any stage in the proceeding was,

(i)      improper, vexatious, or unnecessary, or

(ii)      taken through negligence, mistake or excessive caution;

...

(p) any other matter relevant to the question of costs.

(4)      The Court may fix all or part of the costs with or without reference to Tariff B and, further, it may award a lump sum in lieu of or in addition to any taxed costs.

(4.1)      In the event that the Court directs costs to be taxed in accordance with Tariff B, the Court may direct that the taxation be performed under a specific column or combination of columns of Part II of that Tariff.

(5)      Notwithstanding any other provisions in these Rules, the Court has the discretionary power

(a) to award or refuse costs in respect of a particular issue or part of a proceeding;

(b) to award a percentage of taxed costs or award taxed costs up to and for a particular stage of a proceeding; or

(c) to award all or part of the costs on a solicitor and client basis.

(6)      The Court may give directions to the taxing officer and, without limiting the generality of the foregoing, the Court in any particular proceeding may give directions

(a) respecting increases over the amounts specified for the items in Tariff B;

(b) respecting services rendered or disbursements incurred that are not included in Tariff B; and

(c) to permit the taxing officer to consider factors other than those specified in Rules 346(1.1) and (1.2) when costs are taxed.

(6.1)      The Court may record

(a) any direction to the taxing officer;

(b) any direction that is requested by a party and refused; and

(c) any direction that is requested by a party and that the Court declined to make but leaves to the discretion of the taxation officer.

(7)      Any party may

(a) within 30 days after judgment has been pronounced, or

(b) after the Court has reached a conclusion as to the judgment to be pronounced, at the time of the return of the motion for judgment, whether or not the judgment included any order concerning costs, bring a motion before the Court to request that directions be given to the taxing officer respecting any matter referred to in this Rule or Rule 346. An application under this subsection in the Court of Appeal shall be made before the Chief Justice or a judge nominated by him, but either party may apply to a court composed of at least three judges to review the decision of the Chief Justice or the judge nominated by him. (My emphasis)

346. (1)      Unless otherwise ordered by and subject to any directions from the Court, all costs shall be taxed in accordance with column III of Part II of Tariff B.

(1.1)      In taxing and determining the number of units to be allocated to a taxable service from the range set out in the appropriate column of an item in Part II of Tariff B, the taxing officer shall consider

(a) the amounts claimed and the amounts recovered;

(b) the importance of the issues;

(c) the complexity of the issues;

(d) the volume of work; and

(e) any other mater that the Court has directed the taxing officer to consider.

(1.2)      In taxing costs, the taxing officer shall take into account any refusal of the Court to make a direction pursuant to Rules 344(6) and (7).

(2)      Costs shall be taxed by

(a) a prothonotary, each of whom is a taxing officer, or

(b) an officer of the Registry designated by order of the Court as a axing officer,

subject to review by the Court on application, within 14 days after a taxation, of any party dissatisfied with the taxation.

Part II of Tariff B lists 27 items of taxable services whereof the taxing officer may exercise a certain discretion. One of them, item 24, entails a special requirement: "Travel by counsel to attend any trial, hearing, application, examination or analogous proceeding, at the discretion of the Court and where ordered".

[3]      In the instance, the docket shows 1⁰ that the Respondent has not yet submitted its bill of costs to the taxing officer and 2⁰ that absent any request at the hearing with respect to item 24 of Tariff B, the Court did not give any direction to the taxing officer with respect to travelling time.

[4]      There is no indication in Respondent's motion, made pursuant to Rule 324, as to whether it is directed to the Chief Justice or a judge nominated by him (344(7)) or whether it is seeking discretion of the Court pursuant to item 24 of Part II of Tariff B.

[5]      This matter raises an issue of jurisdiction: who is to hear and decide such an application for travelling time pursuant to item 24 : the Court as constituted at the time of the hearing, as item 24 suggests, or the Chief Justice or a judge nominated by him as suggested by the last sentence of Rule 344(7) ?

[6]      I am of the view that "the Court" in Rule 344(1) to (7), insofar as the case is heard before the Appeal Division of this Court, refers to the panel as constituted of three judges. Jurisprudence has in fact interpreted this rule, with respect to cases heard before the Trial Division, as referring to the Trial Judge.(See A/S Ornen v. "Duteous" (The), [1987] 3 F.C.D-10; Poudrier c. The Queen (1984), 27 A.C.W.S. (2nd) 7 (Fed.T.D.); Eastern Can. Towing Ltd. v. "Alzobay" (The), [1980] 2 F.C.366 (T.D.). Common sense calls for such an interpretation : the panel, constituted of three judges, is the one who knows the circumstances of the case and of the matters set out in subsection 344(3) that are to be taken into account in awarding costs as well as in determining their quantum. Moreover, when it comes to a claim pursuant to item 24 of Tariff B, which specifically indicates that travelling time by counsel to attend a hearing is not left within the discretion of the taxing officer but with the discretion of the Court, it is normal that the bench that heard the appeal be the first seized of the application.

[7]      However, a party that did not seek direction of the Court at the hearing, whatever be the reason, is not prevented from making an application pursuant to Rule 344(7) to the Chief Justice or a judge nominated by him, be it one member of the panel who heard the appeal - this is the case here - or not. But then, the Applicant has the burden of showing circumstances that justify such costs, having failed to seek such travelling time counsel fee before the Court that heard the appeal.

[8]      In the present case, I see no reason to direct the taxation officer to grant a fee with respect to item 24 of Tariff B. It appears from the docket that both parties insisted that the appeal be heard in a different city, Toronto for the Appellant, Montreal for the Respondent. The Chief Justice specifically ordered that the appeal be heard in Ottawa since the parties could not agree on a place for hearing. To me, this fact, by itself and without further explanations by the Applicant, constitutes no valid ground for granting travelling time.

[9]      The Application is dismissed.

     J.C.A.