PARTY AND PARTY COSTS

FRED C. NEWIS TAXING OFFICER

) , PARTY AND PARTY COSTS

liThe fundamental principle of costs as between party and

party is that they are given by the Court as an indemnity to the person

entitled to them, they are not imposed as a punishment on the person

who must pay them." (Orkin - Law of Costs 14). They are considered

to be a partial indemnity only to the successful litigant against

his liability to pay his mm solicitor's costs.

There is no "right" to cost, to whom they shall be paid and

in what amount are within the discretion of the Court or Jud~e, subject,

of course, to the express provisions of any statute or rule of court.

(See Q.B. Act Ch. Qr R.5.S. 1978, Sec. 12 and Rule 542.> Where no

) specific ~rder 1s made costs will follow the event.

For a comprehensive discussion of party and party costs

in Saskatchewan, see Guyer Oil & Co. Ltd. vs. Fulton et al (1973)

2 ".".R. 613.

Costs are not the property of the solicitor but that of his

client, subject to a solicitor's lien,if circumstances so dictate.

Interlocutory Proceedings

Interlocutory applications should not be considered to be

those made only between issue of writ and final judgment but should

include applications made preparatory to the issue of the writ and

up until satisfaction is obtained on the judgment. The Court may make

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any of the following directions as to costs on such an application:

1. "Costs in the cause", which means simply that the party aw'arded

costs in the final disposition of the

matters is entitled to same, subject

to the discretion of the Court.

2. "Costs to the plaintiff (defendant) in the cause 11 • The named party

is entitled to the costs of the application

provided he is awarded costs on final

determination. The opposite party is

not entitled to the costs even if at

trial he is awarded costaof the action.

3. "Costate the plaintiff (defendant) in any event of the cause,lI

Such costs go to the party named regard­

less of the eventual disposition of

the action and the costs. Such costs

shall not be taxed and need not be paid

until the final determination of the

proceedings (FUle 566(0)), May be

set off (R 553).

4. "No costs" means no costs to either party regardless of the eventual

disposition of costs.

N.B. Each of points 2, 3 and 4 is a final disposition as to costs and

may not be varied by the Ju~ge making final disposition of costs.

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5. "Costs reserved to the trial Judge" means Judge making a final dis­

position as to costs may award costs

of interlocutory applications as he

sees fit. If not specifically dealt

.with, costs do not automatically follow

the event but may be dealt with by trial

Judge on subsequent application.

6. If in an order made pursuant to an interlocutory application, no

reference is made to costs then costs

will follow the event and become costs

to plaintiff (defendant) in the cause,

The exception to this principle, however.

1s the costs of an application to amen~,

to add parties, or to take any other

step which ought to have been done

or anticipated at an earlier date. It

is within the discretion of the taxing

officer to allow or disallow such costs.

7. "Costs of application and costs thrown away to plaintHf (defendant)."

Usually made on opening up default

judgment and usually payable before

any steps may be taken by applicant.

No costs should be allowed to parties

attending on a motion when they have

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Costs of the Day

been served with notice unless they

wish to make valid submissions for

the consideration of the Court.

(Tate va. Warren (1963) 1 O.R. 517).

Such costs are oeeas.ionally given where by the default of

a party the proceedings are not able to proceed on the day fixed

and are therefore adjourned to a future time. Such costs will include

all costs thrown away and couosel fee to all counsel representing those

parties not responsible for the adjournment.

Tariff of Costs

From section 89(1)(e) of the Queen's Bench Act flows the

power of the Judges of the Court of Queen's Bench to provide a tariff

of fees and allowances for services of barristers, solicitors and

counsel in all causes, actions and matters in the Court as well as

a tariff of fees to be paid to witnesses. jurors and inte,rpreters.

The tariff of solicitors' fees applicable ~o matters in

the Court of Queen's Bench forms part of the Rules of Practice and

Procedure and is referred to as Schedule I"BII. The schedule is

divided into five columns, each covering a specific ra~ge of dollar

values. Rule 549 and its various subsections determines which of the

five columns is appropriate for the taxation of the costs recovered

in any proceeding in the Court.

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) Certain of those subsections bear further examination.

Subsection (1) provides for an increase in counsel fees and charges

by the Court or Judge on the basis of special skill shown, or labor

done, or importance or urgency of the matter in controvercy. If the

discretion of the Judge 1s not exercised at the time of delivery of

his judgment, application may be made by motion for an appropriate

increase. (See Guyer Oil va. Fulton, previously referred to.) Such .

an application may be made even though formal judgment has been entered.

(Kirzlnger VB, Kalthoff (1964) 48 W.H.R. 502). Subsection (2) gives

the taxing officer the discretion to increase fees where a large

amount of money is recovered. The sum of money is not the 80le governing

factor. the taxing officer must also apply the criteria set forth in

) subsection (1). lvorthy of note is the September 1. 1980, amendment

to this section which removed the words "other than counsel fees".

Subsection (6) was also amended effective September 1. 1980.

which said amendment had the effect of dropping the scale upon which

costs in matrimonial causes should be taxed from column 4 to column 3.

By amendment of the same date. Rule 550 was deleted. However,

the matter of fees to be paid to the Local Registrar is properly provided

for in section 60 of the Queen's Bench Act.

The Bill of Costs

Every bill presented for taxation should be drawn in accord-

ance with Rule 558. For the convenience of the taxing officer and all

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parties interested in the taxation items comprising the btll of costs

should be numbered consecutively and should be identified by the

appropriate tariff item number and description of the services rendered.

Disbursements paid to the Local Registrar should also be identified

by tariff number, all disbursement items should be inserted in the

bill directly following the service to w~ich they pertain. Sufficient

margins should be provided to permit the taxing officer to note

amounts taxed on or off therein. A sample bill is hereto attached.

The Tariff of Fees (Schedule I"B")

Item number 1 is self-explanatory, however, by a decision

of Johnson, J. (as he then was) dated October 22, 1972, in Land Titles Act

and UV Industries, he found that proceedings commenced by notice of

motion should be covered by item 1 of the tariff. Item number 2 was

amended as of September 1, 1980, by adding the words "measured by

the amount recovered after exemption ll• The earlier 'practice waS to

apply Rule 549(7). Item 5(c), the cost of using a private process

server is taxable providing the taxing officer is satisfied of actual

payment and the reasonableness,of the sum paid. Item number 15 has

been varied with regard to allowance to a solicitor attending an

examination elsewhere than at his place of residence. Rule 566(e)

still provides for the taxing of costs incurred in obtaining evidence

outside the jurisdiction. No mileage, sustence or lodging may be

claimed by a solicitor attending at a place other than his residence

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for examination, trial or appeal except as provided aforesaid. Items

18 and 22 may be allowed where settlement is reached prior to trial.

The taxing officer will have to be convinced that the circumstances

so warrant.

Item '26 should not be included in a normal party -ani party

bill. That fee forms part of the costs which are endorsed on the

execution itself.

Item number 35 was varied as of September 1, 1980, so as

to make the fees allowed exclusive of disbursements and to make

Rule 549(10) applicable. The aforementioned Rule will only apply

to those matters which formerly fell within the small debt procedure.

Costs Taxable re Counterclaim

General principle appears to be that only those costs

occasioned by the counterclaim are taxable. Some apportionment

of other tariff items is usually necessary. (See Power, 3rd Ed. at

186).

Witness Fees and Other Disbursements

Rule'562 provides for payment to witnesses,etc.,fees as

set out in schedule IV of the tariff.

Rule 563 gives the Court general power to allow reasonable

fee's for procuring evidence and the attendance of witnesses.

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The taxing officer may not allow fees in excess of the

amounts set out in the said schedule, any fees paid in excess of

those amounts may only be recovered upon application to the Court,

Rule 563. (See Guyer Oil Co. Ltd. vs. Fulton (1973) 21L1v.R. 613,

Haig VB. Bamford (1973) 6 W.1v.R. 377, and Kangas vs. Parker (1977)

1 W.W.R. 28).

Witness fees may be claimed by a party to the action called

to give evidence. The taxing officer must satisfy himself that the

evidence given by the party was essential to the case and that it

was neces~ary for him to attend for reasons other than to superintend

the conduct of his case. A witness qualified by the Court as an

expert is not entitled to professional witness fees unless he falls

into one ,of the categories referred to in the tariff or it is so

directed by the Court.

1.fu.ere the attendance of a witness is procured and due to

developments in the conduct of the case he is not called to testify

the taxing officer may in his discretion allow fees for that witness.

(See Rule 558(2».

The cost of procuring maps, plans, photographs, translations,

etc., actually used at trial may be claimed as a disbursement.

All disbursements, other than those paid to the Local Registrar,

should be verified by affidavit, which said affidavit must show that

the sums claimed have been previously paid.

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The taxing officer has a wide discretion to disallow any

costs which he deems to have been improperly or unnecessarily incurred.

Procedure Before the Taxing Officer and upon Judicial Review

A party' entitled to costs may obtain from the taxing officer

an appointment fixing the time and date for the taxation of his bill.

If more than one party is entitled to costs in a proceeding, it is

convenient to tax all bills at the same time. One day's notice' of

taxation must be given to all interested parties. (See Rule 557).

The parties attending upon taxation must be fully prepared

to argue the allowance or disallowance of any item claimed in the

hill. The party adversely affected 'by a decision of the taxing

officer should ensure that the said officer makes note of his objection.

Any party dissatisfied with the results of a taxation may

within 15 days ,and on two days' notice to the other parties apply

to the Court for review. Only those items objected to before the

taxing officer and only the material relied upon before him may be

argued before the Court. (Rules 560 and 561).

The cases are legion which say that the Court will not

interfere with the exercise of his discretion by the taxing officer

unless it can be shown that he misguided himself or that he proceeded

upon a ~vrong principle. Therefore, it is most important that all

points be fully argued before the taxing officer and in the event

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that a junior 1s sent over on taxation that he be given an opportunity

to fully prepare himself in advance. Only with leave of the Court

may new material be filed on review.

Payment into Court

Rule 175 provides that a defendant or defendant by counter­

claim may after filing his defence pay into Court monies in satis­

faction of the plaintiff's claim or claims.

Rule 176 provides for the acceptance by the plaintiff of

those monies and the taxation of his costs to the date of payment

in.

In the event the plaintiff opts not .to accept the monies

paid in and proceeds to trial, the costs of the proceedings then

become wholly within the discretion of the Court or Judge subject

only to the provisions of Rule 180.

Rule 180 also provides that no disclosure of money paid

in is to be made to the Judge or Jury prior to the delivery of

judgment and in that regard I would urge every defendant having paid

money into Court to search the Court file before the commencement of

th~ trial to assure himself that there is no indication therein of

the payment in.

After delivery of judgment in favour of the plaintiff,

it is in order to apply on noti"ce to the trial Judge to vary his

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award of costs to reflect the fact of payment in if such variation

is justified under the circumstances.

Foreclosure Proceedings

The costs of foreclosure proceedings are allowed and taxed

as between party and party unless the mortgagor has specifically

contracted to compensate the mortgagee for legal costs on a solicitor

and client basis. If such a clause exists in the mortgage sued on,

such costs should be asked for on application for order nisi. The

taxing officer will not tax a bill prepared on that basis unless

the order nisi so provides. (See CMHC vs. Johnson et a1 (1971)

5 W.W.R. 163).

Administration of Estates (of deceased persons)

The Surrogate Court Act, Chap. 8-66 R.S.S. 1978, by section 94(4)

gives the Board of Surrogate Judges the authority to prescribe a tariff

of the fees and costs to be allowed to barristers and solicitors

practising in the Court. Section 93(1) of the Act provides for the

taxation of the bill of costs o.f a barrister or solicitor for business

transacted in the Court. Subsection (2) of section 93 provides that

the mode of taxation shall be as provided for in the Rules of the Court.

By Rules 96 to 109 which came into effect on March 1, 1972~

the Board of Surrogate Judges fixed a tariff of fees and also provided

for the mode of taxation.

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In their wisdom, the Board sm., f.it not to direct that the

Local Clerk of the Court should be the taxing officer but instead

im90sed that responsibility on the Judge.

Therefore, any review of costs allowed ~"ould go to the

Court of Queen's Bench or Court of Appeal in accordance with section 36

of the Surro~ate Court Act.

Rules 97, 98 and 99 fix the fees on a!>plication for 9robate

and for certain other steps taken in that regard. The fees to be

calculated on a percentage of the value of the estate to be probated

as set out in the statement of assets required by Rule 15. The sum

so calculated may be varied upwards or downwards u~on application

to the Court dependant upon the complexity of the estate. (Rule 100).

On application for passing of accounts the fees prescribed

in Rule 101 are applicable.

On contentious business, appearances in Chambers, etc.,

the Judge may allow such fees as he deems adequate. (Rule 101 and

Rule 106).

Taxation in Other Courts

The taxation of costs in the District Court or Court of

Appeal follows the same general principles for taxation as in the

Queen's Bench.

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IN THE QUEEN'S BENCH

JUDICIAL CENTRE OF REGINA

BETWEEN:

Tariff

1

1

5 (b)

5(c)

10

5(.)

13(1)

14

15(.)

A.B. of the ,City of Regina, in the Province of Saskatchewan,

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C.D. of the City of REgina, in the Province of Saskatchewan,

BILL OF COSTS OF A.B.

Item Column 5

Cormtlencement of Action

Paid to issue writ

Arranging for personal service

Paid process server

Particulars

Service of particulars

Opposing application for further particulars

Preparation for examination

Examination of C.D. 1 hr. 15 min.

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Q.B. XXX/80

PLAINTIFF

DEFENDANT

Fees Dish"

150.00

10.00

6.00

20.00

30.00

6.00

190.00

200.00

110.00

Tariff Item Colunm 5 Fees Disb.

10. 16 Paid on examination 10.00

11. Paid for transcript 50.00

12. 15(c) Attending on examination of A.B. 1 hr. 20.00

13. Paid for transcript 10.00

14. 17 (a) Statement as to documents 100.00

15. 5(a) Service of statement 6.00

16. 17(b) 10 additional documents 1.50

17. 18 Preparation for trial 180.00

18. 19 Notice to admit facts 80.00

19. 5 (a) Service of notice 6.00

20. 20 Setting down for trial 20.00

) 21. 5(a) Service of notice of ' trial 6.00

22. 14 Paid to file notice of trial 30.00

23. 24 Adjournment of trial opposed 60.00

24. 22 Counsel fee with brief 260.00

25. 23 Counsel fee two additional half days 240.00

26. 26 Paid hearing fee 35.00

27. 25(c) Entry of judgment 60.00

28. 5 Paid to issue judgment 10.00

29. 5 (a) Service of judgment 6.00

30. Paid witness fee to E.F. 15.00

3l. Paid professional witness fee to G.H. 52.50

32. 30 Correspondence 80.00

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) Tariff Item Column 5 Fees Dish.

33. 37(a) Preparation of Bill of Costs 15.00

34. 5 (aJ Service of appointment 6.00

35. 37(b) Fee on taxation 15.00

36. 8 Paid for appointment and taxation 11.00

$1,703.50 $253.00

Fees reduced by application of Rule 549(10) to $1,600.00

Total fees $1,600.00

Total disbursements 253.50

Total $1,853.50

Taxed on Nil

Taxed off Nil )

Taxed and allowed at $1,853.50 this 22nd day of November, A.D. 1980.

F. C. Net..r!s, Taxing Officer.

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~J</ -ORDER XIV:

PAYMENT INTO AND OUT OF COURT AND TENDER.

1'15.-(1) A defenda.nt may. at any time after filing' his statement of defence, on notice to the plaintiff, pay into court a sum of money in satisfaction of the claim or (wh~:re several causes of action are joined in one action) k:~tiat~tibn o~J,6ne 'or .:t;aore of the causes of" action; provi4ed that with 'a defenCe setting up tender before action the sum.of money. alleged to have been tendered shall be brought Into coun. . . , ,

(2). Where -the ,money is paid into court in satisfaction of one or more of several causes of, action, the notice shall specify the cause or causes of action in respect of which paymentris made and the sum paid in. respe~t of each such ea,use of action. unless the court otherwise orders.

(3) The !lotice shall state whether liabilitY is admitted. or denied and shall .be in form 11. (New.)

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:~:II~h ... e . ,l7'G.~'<i),', vThere-'mone; is 'paid' into court under the I!«.pttd la3t preceding- rule, the' plaintiff may; within seven days

from the receipt of the noti(:e of payment into court, accept the whole sum, or anyone or mQre of the specified sums.

, In satisfaction of the claim, or in satisfaction of the eause :" or causes of a.ction in respect of which payment of the

'specified sum or sums was ,made, by givf,ng notice. to the " defendant in form 12,.and thereupon he ',shall be entitled

to reCeive .payment of the accepted sUm or SillllS in salls­fact~on as afore~aid" '

(2) Payment· shall be made to the plaintiff, or on his Written authority; to, his solicitor, and thereupon proceed­ings in the action, or in respect of the specified cause or causes .of action, shall be stayed. ' ,.

; '($) ,It. the' plaintiff accepts money paid into COUl't in satisfaction of his claim, oi" if he acc~pts a sum or sums

,paid, fn respect' of one '01' m'ore of specified causes of action, 'anq. gives notice that he. abandons the other cause or causes of ",'~ti9n, he may, :after four days from payment Ollt and unless the court otherwise orders, tax his costs incurred to ~e.'tiro~' of p:ayment ·iIitd court; and, if such costs are not paiC;l within four' day~f from :taxation. the .plaintiff may, without 'any order, sign judgment therefor. .

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(4) This rule: shall ,not appiy to' an action or cause of action to whi<:h a defence of tender before action is pleaded. (New.)

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*?n"aYrilnlZ 11'.1. 1~ the whole of the money in court is riot taken In,<:ourt., out uIlder the last preceding rule, the. nioney remaining in

, ,court, shall not be' paid' out except in: satisfaction of the claim or the specified eause or causes of action in respect of which it was paid in and in pursuance ot an order of the _cotirt, which' may "be m.ade "at any time' before, at, or after , ' trial. (New.)

::u'i~to~!O 11·8.~(1) Money'may be paid int~ court ~nder rule 175 ~~I"'a'1ra_bl,lt by one or mo're Of several defendants. sued jOintly or in the

, d. udallb_ 'alternative, on notice' to the other defendant or defendants.

(2) If tne plaintiff elects, W!thi~ seven days after receipt· of. notice.pf paym~nt lnt'? cOl,lrt. to accept the sum or sp.ms paid into cou,tt, he, $,al1' give D9tice in_ form 12 to

" " ',each defendant. . (8) Thereupon all' ,further pro'ceediIlZs .in the action, or in respect of the specified cause"o!, e.auses of action~ sha~l 'be stayed, and the money-s!lall ,DQt"be paid out except in

, pUl;suance of an 'order of the court dealing with the whole costs 6f the' action, ot'cause or causes of action. (New.)

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D~!~~c~Y 119. A plaintiff or other person' 'made defendant to a CQ , , 'counterclaim, may pay money into cou,rt in accordance with

the foregoing rules,.. with the neces'gary modifications. (Ne,v.) ,

-:Pll<llo;\inp ISO. E",cept in an- act jon to which a defence of tender 'before a.ction- is pleaded, or' in'whlch' a plea under section 9 of The Libel .M $!a:n.der Act Iia~ been filed, no statement

,'" of- the, fact that money has been paid'lnto court under the , .- preceding rules Slul,l1 be inSerted ,in the pleadings, and no

.. communication of Jha~ fact lfh,a,ll at the trial of any action

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; " be 'made to ,the judge or jury' until aU questions of liability and amount ,of debt, o~ damages"have,been decided; but the judge shall. in exercising ¥s dis'eie~ion' as to. costs, take into account both the fact that money' has been paid into court .~ and the amount of,such payment.' (New.) -, '

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COSTS.

c:S~&!b' \ 5420' Subject to the provisions of The. Queen's B.ench §!lIc.;,~01I. Act and these rules, the costs of and -incidental to all pro­

ceedings . in -the' court, -including the. administration of '-estates 'and trusts and' compensation or allowance to any

I ~. executor, administrtitol', 'guardian, committee, receiver or trustee, shall be in the discretion of the court; provided however that notwithstanding anything contained in rules

=~ 544). 645, 546, 549, 551 ;aDd 553, the CO/3ts ,of all parties to any. proceedings,., including' third parties; the amount· thereof, the party by; whom. or tqe 'fund or estate or portion of an. estate (if.any) out of which they are to be paid, shall be in· the discretion of the court or judge the,reof, and "the. court or ju,dge may in any case award a gTOSS sum in lieu .

/. of or in addition to any taXed costa, and may. allow costa to be taxed to ,one or more parties on one scale, and to another or other parties ,on the~~same or· another scale .. and the amounts taxed, on the ex~esg of one scale over another to be set off one against another. and in case no order is ~de the co.s!s sh;lll foll9W ·t!).e event.

Provided that nothingi herein coutained'- shall deprive an executor, administrator.' trustee _or mortgagee, who has not unreasonably instituted or carried on. or resisted, any pro­ceedings, of any rights to costs: out of a. particular estate or fUild to which he 'would otherwise'·be entitled.~ ,So 557.

fu~!!rctra" 543. Where by any.statute it is provided that the judges jHo.::eeihlP of the Court of· Queen's 'Bench may pi-escribe a: tariff of

costs for ·'services to be rendered thereunder' and no such tariff' is prescribed, or that the court' -or .judge having jurisdiction under: such statute- 'may .award costs of pro ... ceeclihgs thereunder, the' fees and costs payable for services rendered under any such statllte or in any such proceedings

. shall be, tax'ed ot{sueh ,scate as th~' judge may order.' S. 558.

0ltI.l:s;4blaa '~Yi4'(Whe!l separa1z; issues 'itLfact 'or law are raised upon a. claim Or counteyc,laim, Jhe, costs of ,the severa] issues rcspecti· ... ely, both,in']~:'-tr and fact:sltall be in the_discretion

.,of"llie court, and the I?ourt shall give:specific directions as to the allowance or Ol~~~l'wise of at:1Y s,u¢h costs, and if the whole costs \>f the, act)_on ,or ,other proce~dings are not in~ tc-'rided"'to l::llii given fl!' any party, -the court may direct

; taxation.' of the wh61e 'C'osts ahd payment of such proportion thel'eof,' as 'may be jl)st 'or make '3, specific aIlowance in r~spe.ct of the costs of lIny such issue or issues. S. 559.

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WbIl1l triIIl Ga.IInot »J'OCud !roD\ IMlI'lettt of SOl/dUll to ..... d

545. Where, upon the trial of any cause or matter, i~ appears that the S}):De cannot conveniently proceed by reason of the solicitor -for any party having neglected to attend personally. or:;'y some proper'person on his behalf; 01' having omitted tc deIivel' any paper necessary for the use of the court, or having neglected to bring with him and 'produce 'any doc1.,Imeat in his possession which is required for the purposes 'oi.:the trial, or; h~ving neglected to do any other act or. thing "necessary for the trial, the court ..may 'require such solicitor,personally"tQ pay to all or any of the parties such costs as ';~~e caul't shall see fit to award. S. 560. [E.O., 66,r. 5.],

~r1'fl' 548.: Where iIi "anY.'. case "it'becomes necessa.:t:'Y for the, ad ria... . 'court to apPoint a e'1l~rd.ian 'M litem of an infant or a per-

, son of u~'ound miud, .the court in'inaldng such.order may " , direct tlmt'the oosls of the person so appointed sh.lI be

,J '-borne and 'paid, in the fh:st. mstance, by'the party desiring ; such appointment with a right of recovery thereof on the:!

, final disposition at the caUse or matter,' as the' court: "may determine or maY'make such further'or 'other -order as to costs of such guartiian ago-the justice and circ.uri1stanees of the cas. may require." S; 561; [E;O. 65,'r. 1&.] ,

J',

547.-(1) Where" plaintiff ill ani action or issue, or ,the petitioner, or' applicant; in·. any; proceeding-:by "'-a1 of

, , originating notic~ 'resides out of.. Saskatchewan, or, although temporarily resi(lerit within' SasIci.tchewan is' ordinarily resident .:out of ,::bskatchewan, 'or where 'under the pro­visions of any .l~'. ',-Lute a defendant 'may,' be entitled to security for cm;:-,~, and the defendant by himself or his

'agent'alIeges by 'at'fidaVit, that he has a 'good defence on the merits and stahhl'~ the.'nature of such d'efenc~, the defendant shall be entitled ~b serve, notice' of. motion for an order reo­quiringthe plaintiff within a time to be limited by the court to give security for the defendant's 'costs in' such a~ount and in ~uch manD.er and form as the court may'direct •.

,~,.!' (2) Uponc.ti,cn, " p"plidti,'on 'the court inay 'direct that all 1Il'neNiaal:

'further proceedingS be stayed until such securitY is given as ordered and U)_at, In default of such sec~rity_ being given as ord~red, t,le action: or pl'ciceeding do stand dismissed with cos~' without :further order, unless' thel court,: upon special

, applicatioh,"efther: before or after' the .expiration· of such ~ime, '$hall'othernise order:;' ' ,

Ul3$do! , Provided, how~ver. th'at,:ti such app'.iica~.Oll for :'securit:r is ,I)ot m,ade within a reasonable, t4ue the court m~y refuse to gran,t a stay of procee,dings., Form, SO may be Vsed.

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(3) If upon such application the plaintiff discloses assets of a substantial nature within the jurisdiction the court m,ay l'efu&e to order that security be given, in which case, ~osts shall be costs in the cause, unless otherwise ordered.

(4) If, after an order for security for costs has been made· under the, provisions of this rule, it shall be made to appear upon an applkation to.the court that the am'aunt of

. security, given is likely to be insufficient the court may direct that further security be given, but in such cases the ,court, unless satisfied that the defendant could not reaM sonably have anticipated that such further security would be l'equired, may direct that the costs of such application shall be 'c~sts in the cause to the plaintiff in anr event.

~l~~~nt. (5) If, after an order for security for costs has been =:.ru.rJt~. made ,the plaintiff establishes a permanent residence in

Saskatchewan, the COU1't may upon application set aside the order for security, but in such case an costs incidental to the appJication to set the same aside shall be costs in the cause to th~ defendant in any event. S. 562. IE.O. 65, r. 6.J

et!:.~(Ld. 543., Where a bond is given as security for costs it shall. &"11"II1II IJnless the court shall otherwis~ dIrect, be given to the party

or person requiring the security, and not to an officer of t.he court. S. 568. [E.O. 65, r. 7.]

~f~ot1 '. 549.-(1) The ch:t~ges of barristers and solicitors in -P::::z;!. the Queen's ~ench and in the District Court shall be in the

___ 'I..;,' .:"';..;5;.-~· __ ... d;;i;;sc~r2~~2p. of the ~xil1g.officerJ J~utAh1!lLnot exceed the - amounts set forth In the fIrst, second .Qr thirdColumns of

.Schedu~e r liB" . hei'eto, according to the amount involved

.\nd inespecttve of the cOUJ;t in which proceedings were '!"A~en together with a1l proper disbursements:_

IUe~fli lc~./I 'lIdeUf"lj"6S Provided '~at the court or a. judge thereof may in any

case aUow such increased counsel fees and charges as the special skill shown. or labour done. or the importance or u-rgency of the matter iIi controversy. including any settle­

'.(Ilent, justifies, and the taxing officer may, unless othermse ordered by the court 01' a judge, in any defended case where "the amount involved is as set out in the fourth or fifth columns of the said tichedule, anow increased counsel fees and charges npt exceeding those set. out in the said columns. S. 564(1) ,am. (A. 782.)

1:-· :.c2>, Th; Ialr.ing officcr m3Y in any cOnr~$I<!d J .:a.s: allow charges ex<:eedin$ rhe sums mt:nliontd .~ in th,difth column or Ihe $lid schedul~ bv one­" third where the a;rtOurll involved is 525,000 or

more, by ont:-half ... h<:re Ihe amoum involved is . S50,COO or m(lrc. and by 100000, where Ihe amount

in\·olved is S1l,o\'"1Q or more."

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io.ems IlId"de (.~) Each item in the said schedule shall be deemed to al ne.:euary' ~o~ mdbtde all instructions, dQcuments. attendances, perusals,

ad. other services necessary or reasonable to be taken, pre­p;£ired, made, read, performed, or had, for the purpose of fmI11y completing the step tn'the cause referred to or implied fa such item; provided that if any such step has been begun

'bat only partia+1y completed a proper proportionare part of tlte ell"'!!'e may be'allowed. S. 564(3). (A. 732.)

tTo~~Jm, (4) , The costs of all proceeqings before a judge sitting .~V:r~:,. s persona: designata, shall be taxed when awarded, unless

otherwise direeted~ according to colUJim 1 of the said sdt"edule, or according to "the scale which would,hAve applied ·if no relief other than the payment of Illaner had been ·elaimed in the Queen's Bench or District Court, whichever Is higher. S. 564(4).

~gal1lt9f i (5) Wher,e, py any judgment or order costs' are directed ~~.,. QD..I.l' to be paid by any p'arty, the scale and limitation of costs

sban if no other relief than the payment of a sum of money 'h.a:S been claimed or obtained, be detemrlned as. against a def""dant by the amount for which judgment is given and as' against a pJaintiff -on such column of the said schedule as the court oi,' a judge may direct. S~ 564 (5) arQ.

~t..ll~ (6) Where by any judgrp.ent or order relief other than or in addition to the payment of a sum of money is giveD.t or judgnient is given for the defendant in any proceeding in which relief other than ot in addition to the payment of XIiorier is, elaimed, the costs shall be ta.xed upon the scale set out in column 2 of Schedule I HE", if the action is in the

, District Court, 'an,'d if. the action is in the Queen's Bench., ;&,.., ",,1..< '~clodi.goaeti.n_"d." O.d.",JU" shall be taxed upon the ,I ~f> ,.) scale set out in, such column of the said schedule as the

. court or judge may direct~ and in default of such direction ~hall b¢ taxed- accor<;ling to column 4 of the said schedule, . ,or according_:to the ,scale which would have applied if no relief other than the payment of money had been claimed,

.. whicheyer is higher.S. 564 (6) am. (A. 734.)

lnwtlQellteq (7) Where' in any interlocutory' proceeding costs are p,roee'!o:Uu:u . directed to be paid~ the scale upon which such costs are to be

.' taxed~ or the amount to be paid, may be fixed by the court or judge by whom the direction is given, and if not fixed, such' costs shaH be taxed upon the same scale as the general costs of the action, subject to any direction which may be made byth~ court or judge. S. 564(7). (A. 735.)

By deleting. from rule 5019(6) the words "includ· ill~ utions under O;der XL," where they appear in the eighth line Ih.:reof and substituting therdor "(other than divorce and matrimo!lial causes whicf,-shall be taxed upon column )),",

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RULES OF PRACTICE AND PROCEDUP.E 127

(8) No ex parte order shall contain any direction as to IWsts, and the costs of and incidental to any order whether

.VoC parte or otherwise which are not, provided for in these w]es sha.ll be costs in the cause unless ~ judge otherwise <firecls. S. 564(8). (Ao 736.)

(9) ,On iW: appeal the scale. of costs of the appeal, and if so stawd in the ju,dgment, also of _the proceedings in the <;ou!'t· ~~:19'v, shall be as directed by the judgment in appeal, or in ,default. of direction shall be the same as, that"fixed ~del; the order, or judgment appealed from: -and unless ordered t<) he paid forthwith shall not be taxed until the .t,i.ual determi~ation of ~he ~ction or proceeding.in the court appealed .fron>.. S.,564(9). (Ao 737.)

~::i!~~~'" (lOY-' (al' Except where otherWise ordered in any action or proceeding

., (i) in. which. the only relief claimed is the payment of money by: way ,of debt, damages. or otherwise, or the payment of money with foreclosure or S$le of property mortgaged or pledg~d to secure such money, or

. (ii) in whit:~ th~~g,lg~ ~j goods sought to be recovered does " 'notexceecl'$ I O,';o-r in case judgment is·givenfor the s:.,~(~/;",

defendant where the value of goods sought to be re- ,/ . . covered does not exceed $&OO;OO-;/aCd~· .

, ' • ;. " • I

no party or number of p3.rties among whom there is no divergence of interest or who might properly have defended by .o~e ljiolicitol' shall (except with respect to the cost of any appeal) reeover aga.inst any other party or parties to any proceeding' costs. exclusive of disbursem.ents in excess at the follow:ing proPQrtions of the amount claimed or re­covered:

Where'the amount claimed'or recovered does not 'excaed $600.09 _./..+""",,?, '

, I/~c;...··-. ,

0)1 the exce~s over ~.OD UP to· $5,060.00 . . .

On the excess over $5,000.00 up to 15%

$10,000.00 ~~_~ ______ 10%

On the .xcess over $10,000.00 5%

(0) I~ an other actions or proceedlngsthe limitation above mentioned shall apply upon the assumption that the amount t:laimed or re.covered in the action or proceeding is the highest amount under the scale upon which the costs are in, the result of the action or proceeding taxable. 8.564(10) am.(Ao 73&,)

, . G-{;3;-T·he.at:ShalI be paid to the registrar, Ioeal registrar

and sheriff the ~etf"ijfth-in-&hedIlJe.~.Jr and TII of th~ tariff of costS as authorized by order in councll. S; 565.

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," . c551. If, in any,·case, it shall appear to the court that

costs have been improperly or without any reasonable cause incurred, or that by reas,on of any undue delay in proceeding under any judgment 'or order, ot of ·any misconduct or de-fault of the solicitor. any ~osts proper1r incurred have, nevertheless proved fr'uitless to the person inculoring the same, thE! court may call OD the,! solIcitor or the person by whom such costs have been so ihcurred, to show cause why such costs shouJd'ribt be'disallo'Wed'as between the solicitor and'his client, and '81$0 (i{ the, circumstances of the case

,- shall require) 'why the so;licito-r :should not repay to his 'client any' costs whieh the client may' have been ordered to pay to any .other persbn~ and ihereiJporl may make such order as the justice of the case may require, S. 566. [E.O. ~5; r: 11.J . ." . '

~!;a - ,~52. The'court may ,refer the matter to the local regis­t::~.t:t ,,-trar for inquiry.'and;report; and direct' the solicitor j'n the

first' place to' show cause, before such local registrar, and 'may also direct or authorize the soHcitar of-the law society to atten~ .and lake part in such inquiry. Such notice (if ~y). 9f ~he,pl',o,ceedin~s, ot' O,rder,JlhaU be given to the client .in-, ~uch ni8.hfier as tl\e COlu-t may, direct. AIly costs of the solicitor or the law society shaH be paid by s~ch parties, or out of such funds as the court may direct. S. 567. [E.O. 65, r.11.]· ..... .

::t~~~ : 5~3,. ,A set,.off for debt,~ damaa:es, 'or .cos~. betw~en lle'eD!IU ,,' partIes 'may be-allowed notwIthstandmg the solIcltor's hen

,for costs-in the particular cause or matter in which the set.­off is Sought. 8.'569. (E.O. 65, r. 14.]

Sfj4. ,ThE), costs of inquiries to ascertain the person en­,titled 'to any legacy, money, or s)1are, or otherwise incurred

, 'in relation thereto, ,shall ge paid out of such legacy, money or share, unless the' cOUrt 'shaH other''''ise direct. S. 570. (E.O. 65, r. 14B.] . '.'

" ,fl '.

DJt~::3".-" 655. 'Where some of the persons entitled to a distribu­!! tJ~~~leJ tive share of a f,und are .asc~r~ined. and difficulty or delay tba.ns ' has occurred. or is likely to occur, in asce$ining the per-

. sons entitled to the 'other' shares,- 'the, court may order or , allow immediate payD'lent of their shares to the persons . ascertained; without reserving any part I of those shares to answer the subsequent 'costs of ascertaining the persons entitled to'the other shares j and in all such cases such order may be made for ascertaining' and payinent as the court shall think reasonable. 8. 571. (E.O. 65, r. 14C.)

56S. Costs may, be 'taxed on an award, notwithstanding the, time t :fo1' setting aside the award has not elapSed. S, 572. (E;O. 65, r. 15.)

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RULES OF PRACTICE AND PROCEDURE 129

557. One day's notice of taxing costs, together with a copy of the biU of costs and affida"'it of disbul"sements (if any), shall be' given by the solicitor of the party whose eoats are to be taxed' to the other party or his soliCitor, in -ill1 cases where a notice to tax is necessary. S. 573.

'558.-(1) In' every bill' of costs the professional fees (including counsel fees except such fees as are actually paid to counsel :other than the solicitor upon the recor4) shall be entered jn a separate column from the disbursements, and every, cOlu,run shan be,cast before the bUl is left for taxation.

'~~:s"!!,~its (2) -In, al1 cases' where witness fees are claimed, such claim shall 'be supported by an affidavit of disbursements to ~"hich shall be exhibited receipts proving actual payment of all surris cJaimed, and ,"vhel'e any claim is made in respect of witnesses who were not actually caned at the trial such affidavit aha-n clearly'state the nature of the evidence which such witnesses were expected to give and the reason wh:'r s4clt wimess~s were Ilot called.

:.r:&IIU~ot COC:Qput[UIl' 1:t'IlY~II. CAleu ....

I"~

GI'OII awn fOl'coot.s on 1ut.rlocUUlI:Y appUcat!ou,

(3) Where the' cost of transportation is claimed such affidavit shall state the mode of trausPol''tation adopted an~i· by whom provided and if two, or more witnesses travelled ~n the' ~arne conveyance (other than a conveyance supplied by a cowman carrier for which a fixed fare is charged) then the ,ta,xillg office;r shall allow mileage only in resped of one 'of such witnesses, unless it appear that mo or more \vitnesses ,hired a vehiCle authorized to carry passengers, in which case the taxing officer may allow the amount actually paid, ,by each witness not exceeding, howe\o'er, the amount to which such witness would be entitled for mileage under the tariff of costs. S. 574.

,55~r Upon interlocutory .application, where the court awards costs to any p~rty. the court by the order, may direct paym,ent of.8o sum in gross in Jieu Qf taxed costs, and direct by, 'and to whom such sum in gross shaH be paid. S. 575. (E.a. 65, r; 23.] . . .

AODUeat!ou 560. Any pawh. who may be dissatisfied with the al1ow-fOl'l'e\I[ewof "".1 ta,utlOD - ance, or disalIowance, by the taxing officer in any bill of

costs taxed b3:~ him of the 'VY'hole or any part of the item or items, may, Within fifteen days and on two days' notice to the opposite party, speCifYing the item or items objected to, apply to the court to review the taxation. In the case of an application for review by the person against whom such costs are being taxed, such review shan be 1imited to items which have been specifically objected to before the taxing officer and may include items in which the ta.x:i.ng officer exercised his discretion. Where'the part:,.- against whom the costs are beihg taxed specifically objects to items on the

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Jlridence _r..vl_

~ULES OF PRAC'l'ICE AND PROCEDL"RE

ta,xation before the .tax,ipg officer, the taxing officer shall note such obj~tion and hif'l. certificate shall be conclusive evidence that'such items we.'e objected to. S. 576.

561. Such application shaH be heard and determined upon the evidence which shall have been used before the taxing officer, ,and no further evidence shall be, received except by leave of the court. S. 577.

SQ~.-(i) Jurors, interpreters, witnesses and 'parties when appearing as witnesses, on examinations for dis­covery, or On cross-examination On affidavit, shall be entitled to the fees and expenses set out in Schedule IV of the Tariff of Costs. S. 578 (1) am.

(2) Court reporters. shall be entitled tc the fees and /.<~:"'-C-~ expenses set out in Schedule V of the Tariff of Costs as 0,!"~ . .:...e~ ... fixed,by Order in Council under ~·i59 of The Queen'a L. '~I/~}J Beno" .Act . . S. 578 (2). . '1 .

G63. The cOUl:-t may allow such ju.st and reasonable charges .rid expenses as .ppear to h.,'e been properly iD<:urr~d in procuring evidence and the attendance' of witnesses.S. 579. [E.O. 65, r. 27 Reg. 9.l

S84. AU fees and allowances respecth-ely, payable under Schedules II, III and VII of the Tariff of Costs, whether under ,'n'its· of 'execution or otherWise, shall be paid in advance by the. parties at whose. instance the service is to be rendered; but, in' cases where for any reason the amounts are imPMsible of ascel'tainment, then the amount

. approximated by the,'officer or fixed by the court shall be deposited or paid,· to be accounted for v:hen the correct amount is ascertained;' S. 680.

&n .. """ ... · f_ 565. In all cases and matters in which duly enrolled solicitors holding annual subsisting certificates as .s.uch~ res;11e··t=if' •. ·SEislrAtehe:waa. are employed, they shall be en .. titled to' charge on the taxation of costs between party and party 'and' 'shall be al10wed such fees as are set out in

'Schedule I of'the Tariff. of Costs with such "\"""ariations as are provided for in" 'rule 549, and between solicitor and client, such solicitors shall be entitled to charge and shall be allowed' such higher, further or other fees exclusive of counsel" fees as the. taxing officer shall in his discretion a110·~~t, subject ho\vever, to an appeal to the court, and as to counsel fees such further fees as may be allowed on ap .. plication to' the court. S. 581. .

',566. The fono~ng special allowances and general regu­lations shall apply to all pl'oceedings and all taxations in the court:' "

a, 'I'he ,allowance for instructions and drawing special affldavits, and attendi~g the deponent to be sworn. include. all attendances on the deponent to settle and read 'ove't, '

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FoUoto'be 100 wonb

DiIaDo"':"lI,ee of Cl>!;ta doeurzi"nf6 Ol' pro<:~inll'. imDt'OJ)ft. Tu&tioIa CI' unneeesUtT m,Btter III

. . Rt;LES, OF PUACnCE AND PROCEDGRE 131

b. ''''here a solicitor acts for t\vo or more parties in any action he shall in respect of attendance for service of pleadings, notices and other documents be entitled to tax for, only one attendance and similarly the solicitor for the'other p':u-ty shall be entitled to tax only one fee for attendance for service upon such solicitor..

, c. Where a solicitor acts for two or more parties he shall be allowed only one fee for perusal of documents where the documents are common to both parties.

d. Where the sa~e solicitor is employed for two or more defendaI;lts, .o:~d' separate plea.dings are delivered or other' l)l~oceedings .ha.d by, or for, two or more such defendants separately, the taxing officer shall consider in 'the taxati'on of such solicitor's bill of costs, either between' party -and party, or between solicitor and cIien~ whether such separate pleadings or other pro~ ce~ding:;: were necessary 9r proper; and, if he is of opiriion '.that ~ny' palt of the costs occasioned thereby has ,~een uIj.necessarily or impropel'iy incurred, the same shall be dis'allowed.

e. As to evidence taken on commission, or on an order for examination 'or 'examination for discover;r- beyond the jurisdiction of ,the court, such just and reasonab1e charge~ aild exp~nses as appear to have been properly incurred in procuring the attendance of witnesses, the recording of evidence, and the conduct of the examina~ tion including all reasonable fees to counsel conducting such examination 'as may be allowed by the trial judge or-the court.' '

f. As to attendances at chambers, where by reason of the non~attendance of any,party (unless it be considered expedhmt to proceed ex parte>. or where by reason of the negJect of 'any party in n'ot being prepared with any propel' evidence, account, or other proceeding, the attendance i1?_ adjourned without any useful progress being made, the ,court may order such an amount of cos~ (if any) -a's, he shall think reasonable to be paid to the party -attending by the ,party so absent or

! n~glfectfuI, or by his solicitor personally. and the party so absent 'or neglectfu1, is not to be allowed any fee as against any other party, or any estate or fund in which any other party is interested. '

g: A fotio is to 'comprise one hundred words, every figure authorized to be used, _being counted as one ,vord.

h."'-(l) The court may at tl'ial of any cause or matter or upon an3" application or proceeding in court or cham­bers and whether requested to do so or not, direct that the costS of' any- proceeding which is' improper, vexa~ tious or unnecessary or of any pleading, proceeding,

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132

,-,'

, . ,"

•

RULES OF PRACTICE AND PROCEDl}RE

or other' document which contains yexaticius or un· necessary, matter, or is of unnecessary length be disallowed and the party whose costs are so disallowed (or his soh,dtor if the ,court shall so direct) 'shall pay _any costs occasion-ed thereby to the other party or parties j and for the purpose of ascertaining' the costs to be 'disallowed 'the court roay refer the matter to the

, taxihg officer .

. (2) .tipo!, anytaX'!-tion of costs it shall be the duty of the .. t""irtg officer .. notwithstanding the fact that no

, application has been made to'the eow1: to disallow costs under the 'provisions 'of this rule or that the court has iiven no directions in connection therewith, to disallow the costs 'of the' whole Or any part of any pleading, or other document used in the proceedings, or any exam· ip.ation for diSCOvery which, contains vexatious Or \innel!esshry matter or is of un~ecessary length. and the', costs" of any proceeding not otherwise disposed of which: appear~- to b~,j.rnproper, vexatious or unneces­

, sary.

'(3) Subject to the proylsions of rule 534, the costs of ~pplica.tions to extend the time for taking any pro­

, ceedings, shall be in the discretion of the taxing officer. unless the court shall have specially directed ho"," the costs-are to ~e paid ,or, borne. The taxing officer shall ,not anow the costs 'of more than one extension of time, ,unless he is satisfied that such extension was necessary, and could not. 'with due diligence, have been ayoided. The costs of a notice of motion to extend time shall not be allowed unless the party giving the notice has pre­viously applied to' the opposite party to consent, and he haS not giv'en td:onsent to a sufficient extension of time, or the' ia."ti.r1g officer shall consider there was a good 'reason- 'for not makirtg'such application; and in case the taxing offieer shall not,allow the costs of such motion, lirid- shall consider that the party applyi.ng ought' -to: pay the costs of any other party occasioned thereby. he .may' direct such 'payment or deal nth such co~ts' iIi the mann~r provided by 'regulation i.

(4) If upon taxation.!t 'shall appear to the taxing officer'that the costs have been increased by reason of any, of the matters rElferred to in subsection (1) of

.. this: regulation or that from any other cause the amount of the costs is excessive, having regard to the

. nature of the __ business transacted. or the interests 'in­volved or the m,oney or value of the property to' which

,·,_the costs'reJate or.,to'the circumstances of the case, the taxing officer shall alIow only such an amount for

':,', costs as rna)" be reasonable and proper. and may assess the same as a gross sum and shall (if necessary)

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Attr.uh.zr.ce of 1)artiO)S 0-0 tautlon

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Ilejl'~~to Ilro<:u~e ~&t.i~D

RULES OF PRACTICE AND PROCEDURE 133

apportion the amount am.ong the parties if more than -one. The provisions as to the review of taxation shall app1y to allowances and certificates under this rule.

i. In auy case in which under the last preceding regula~ tiOD, or any other rule of court, or by the order or directibn' of the, court or otherwise, a party, entitled to r~cei:ve costs is liable' to pay costs to any other party. the taxing 6ffiCel" may tax the costs such party is so liable to pay, and may adjust the same by way of deduc­tion or set-off; or ,may delay t~e allowance of the costs such party is entitled to recei ..... e. until he has paid or tendered the costs he is liable to pay; or such officer ,may allow or certify the costs to be paid, and direct P4yment thereof, and the same may be recovered by the party entitled thereto, in the same manner as- costs ordered to be, paid may be recovered.

i. The taxing officer shall, for the purpose of' any pro­ceeding ,before him, have power and authority to administer oaths, and shall, in relation to the taxation ~f costs, ,perform .all such duties, and shall in respect Ithel'eo~.4ave such power and authority as is necessary for such purpose, including examining witnesses, mak­

.lng sepal'ate _certificates or allocaturs and requiring , any party to be represented by a separate solicitor.

k. Where an account consists. in ,part of any bill of costs, the court may direct the ta."ring officer to assist in settling such costs, not being the ordinary costs of paasing the accounts of a receiver; and the taxing Officer, on receiving such directions, shall proceed to tax such, costs, and shall have the same pO\vers, and the same fees shaIi be parable in l'espect thereof, as if the same had been referred to the taxing officer by an ord'er; and he shall return the same, with his opinion thereon, to the court by whose direction the same were taxed ..

l. The taXing officer shaIi have authority to arrange and direct what parties are to attend before him, on the taxation, at CO&ts to be borne by a fund or' estate, and to disal10w the .costs of any party whose attendance such officer shall in his discretion consider unneces-

, '.8817_

r~_-(l) When any party entitled to costs under any , order of the court refuses or neglects to bring in his

costs -£:01' tax~tjon or to procure .the s~me to be taxed, atter dem.a~d for such taxation has be~n made by any other. ,party, the ta:(ing officer upon proof Qf such de­mand and of such neglect and refusal shall fix a time and plac~ for .the taxation of such costs· arid two days' not.ice of such appoinhllent shall be given to the party SQ in default. .

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De-Uv<UTd biD to!) cH.mt wh~cOst:o to he 'Oa!d Quto{ .. {und

RULES OF PRACTICE AND PROCEDURE

(2) If at the time, appointed the party so in default does not appear, or hav,ing appeared negJc.cts to sub­mit his bill and proceed "'\'ith the taxation, the taxing officer shall thereupon certify the costs of the other party or parli~s and certify such non-appearance or ~efusal of. the party in default, and the other party or partie's may thereupon proceed to enter judgment or eOIllPletE~ the proceedlngs without reference to the costs of the 'party so in' default and such party shall not thereafter pe, entitled to recover such costs, unless the taxing officer shall' fix a nominal or other sum in re-­spect of such. costs.

11, Wh'er~ an -ac;tion or petition is dismissed with costs or a motion is refused with costs~ or any costs are by any general or special order directed to be paid the taxing

"officer, may tax suc~ costs without any order referl'ing the same for taxatibn.

o. Where in any interIo~utol"Y proceedings, or on appeal in interlocutoi-y ,proceedings costs are awarded to any psrtt' such costs shall in every case be costs in the cause iIi any ,ev'ent to' the party to whom they are 'awarded, unless the court shall otherwise direct, and : such c'osts shall not be taxed and need not be paid until ,th~ fin'al ddermination of the action or proceeding.

p. If, on, the taxation of a bill of costs, payable out of a fund: or estate: (real or pel"sonaI), or OQt of the assets of a -company in liquidation, the amou'nt of the pro­fesSional charges -and disbursements, contained in the bill, 'exclusive of counsel fees, is reduced by a sixth part, 'nO cost,s shall be allowed to the solicitor leaving

, the bill for'taxatio)l for drawing and copying it, nor for attending the taxation.

q. Where a Ga.use or maiter shall not be brought on for . trial or hearing, the cqsts of, and consequent on, the preparation oi briefs shall not be allowed. if the taxing officer shall be of the opinion that such costs were

, prematurely incurred.

T. Where. in pro-ceedings before the taxing officer, any party is· guilty of ,neglect or delay, or puts any other party to any ulmecessary or improper expenses relatiye to such proceedings, the taxing officer may direet such :party or his solicitor to pay such costs as he may think proper,,',or deal ,rl,th them under regulation i.

s. Where in any -cs'4se or matter any bilI of costs is di­rected to' be taxed; for -the purpose of being paid or

I raised 01.lt of any fund or property, the ta;";ng officer may, if he shall consider there is a reasonable ground for ~d doing, reqllire the solicitor to deli-vel' or send to lUs clients. or any ,of them, free of charge, a copy of

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Appl'll!ado:a tor lllereu$l etllIll.ul tee

• .- Ou'er eLM!!

Tax. lion b, loc.I rna.;kI'

RULES OF PRACTlCE AND PROCEDURE 135

such bill, or 'any part thereof, previously to such officer completing the taxation thereof, 'accompanied by any statement" such officer may direct, and by a letter in~ forming such client that the bill of _cpsts, has been refelTed to the taxhig officer; giving his name and

; ,',' address, for taxation, and ~;ll be proceeded with at the time #le officer shall have appointed (or this pur:­pose, and such officer· may suspend"the taxation for BUch time as he may ~onsider re~sonable.

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t.-(1) Where it has been proved to the satisfaction of a judge or taxing otficer~' that proceedings have, been ,taken bY'8 solicitor,. whereby' proceedings have been , expedited, costs saved, or a~ action, cOPlpromised, the judge or taxing offiCer'may make'such' allowance in res'pect,. of such proceedings as may in, the discretion o.t'thEdUdge or, taxing officer seem just and reasonable, having l."egard to all the circumstances of ,the case.

! ' . .

(2)' \\'here an 'increased counsel fee is desired and haS not: been fixed by the trial judge or the judge or local IXiCl~ter hearing the application, when giving judgment or making the order, application for such counsel fee inay ·be 'made tp the trial judge, or judge, or lo~t mas-,

,:ter hearing the application, or in cases of actions which I have been settled without trial or without hearing, to any judge.

',', " . .' (8) Application for.such allowance or mcreased coun-sel tee under the prqvisions of this rule, and application for aIlowances under, ~·ule 568 shall bnly be made after due notice of such application to a)1 parties-interested, and such parties shall have ah opportunity of being heard. " ,

'U. Whenever a solicitor does any' work~ perfortns any service, or incurs any e:>..llense, not specially provided for in the tariff of fees. ,he shaH as between party and party be al10wed therefor such sum. or, sums as 'a judge shall by fiat dil'E!!=!t; and when" not granted .on the de-­termination of the cause or matter, shall be obtained on notice to the other parties intereste-d.. S. 582 am.

-:s&< T in i~ the rules under Order XLVI .. to ,the j;~ amount of costs s w tters governed by the (J 5 small debt procedure of the'District ou., ' . a-;II C

568. At all judicial centres :where the sheriff is also the local registrar, the taxing officer for the taxation of sheriff's costs. either in respect of sel"'vices performed by him as sheriff or in respect of proceedings in which he is a party, sha1I be the local master arid in such cases applica­tions by way of review of taxation shall be to a judge. S.584.

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,RULES OF COURT

COURT OF QUEEN'S BENCH PROVINCE OF SASKATCHEWAN

EffectiYe November 1;'1978, Ute Rules 'of the Court of. QU~l!n's Bench! of, Saskatchewan are amended as follows:: ",,' "';)'

Schedule IV in the Tariff of CoSts is deleted and the followinll sllbslituled therefor:

"Fees payable to Witnesses, Jurors and 'tnierpre.' tOl'S ;n Cl'imi1131 a'rid Ciyil 'proecediriss as refer­red to in Rule 562 of ihe Queen's Bench -Rules, p,ules 4 <'Ind l4 ortoe Qi$lfi~t C;ou.rt Rules and Rules 113 and ~ 14 of the Surrogate Court P.ules. , I. 'For wlln'eSs.es Other than - those '_ '

referred to In' (2) below: ,. '. ,~t day,or pardol\ thereof: .... , •.•.. S IS.OO '2. FOt barr.i$ttrs and solicitors,"

physicians and~ surgeons. C:\yil and other prore~sional engineers, s4r~,: Y,eyors, . chartered accountanLS', Cet; lined 'public -accountants, ~1ITI:hi(ects. denlistS, velerinuy sUrgeOns. and sllch other p~ofessional wilnCll$eS as the I "

judge may dir~. other tlian Patlies 10' the ClUse, when called to give: evidenc'': in consequence of any professional ser· Y,i~es rendere,d by them, and to aoy such ' .... it'ness called to -give expert eYI­dence:

per one-half day or pari thereof: . .. S 52.50.' per day: .,' .......•. ' .•..•... ' .... '; '.. S 10.5.00

Con$u!tan.t callt;d as ex~rt; " P4r one.~ha.!f ~,,), or PiilTt, tpereof: .• ,. S 72jQ' per day .... , ...........•.... , .... , S13o..00 ,Wher: a medical ,rcport with

.:xamin.llion is admitted in evidence under' the provisions of "The Slskatcnewan Evidence Act and the maker thereof does nO! give testimony: S 55.0.0. ,j, 'w For a jy.l',or, whe;, attends ;ur-

suant 10 a 'Summons: ' , ~r'day or part Ih~reof: ,'. : .. ; '... :s I S.o.o. (b) For, a juror whq, atte"ds PUt-

suant to a summons and is SVo'orn to serve as a jtJror; '" . .' " per tillY served or part thereof:.',. S_ 25.0.0.

4. For lmerprctcrs; po=r.day;, ..•..• ,S 20..0.0. S. For a witness. juror, or interpre·

lor:, .' ' '. ' ,'~ . '. ,fa) ·(or.each kilometre, n,;essanly,

travel1:d by means other than railway',' bus or aeroplane: .. ; .....• '." .'. ~ .".' 12.43c

Ib) when railway. bus or acro plane is used for, traYel:. •.••••••••.. actual .' " , . . , ,,' fare

paid

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:ec) for mellis while absenl from re$,idence to, altl:nd courl: •.......... a c I unl

and reason able

(dJ for mOlel or hotel accom­modation when required to be absent (tom' residence overnight: ........•.. ac'tua I

and reason able $UP­ported by receipt

Passed and promulgated at Regina. Saskalchew;ln, thiS 22nd day of February. A.D. 1979.

F. W. Johnson. C.J. M. A. ~1a'cPherson. J. ,'A~ L'Slr<lis. J. R.·A'. MacDonald, 1. E. N.. l1ughe.s, J. C. L ,8: ESley, J. K. R~ N. MacLeod. J. O. E. Noble. J. J: H. Maher, J. K. R'; Halyorson. J.

Dated this I4lh day or March, A.D. 1979: Certified a Trull. COpy. N·212. 13, 14

, F. C. Newis. Registrar C~urt of Queen's B~nch_

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New··Rutes are hereby added "fo!Jowill_~ the that If(Hlld otherwi-c be "'''\\01:1>1,.. ulldcr Rule. heading "FEES AND COSTS" below Rule 95, 99. •. - !

96. (II OU and after the first day of 99. Where n solicitor "~t;"lilled'- hy the Pt'r- J ),[;\:-C.1, 9U, fec;l a{ld costs. in estate. matters sonar r<::prcspntntive IX'r(o~n:; the bulk of the ~, shall be allo\'.:~d to duly tUfo/kcl barristers duties. reqllirtd ot :t pcr~un ... 1 rcpresa1blivt and solicitors -ho/dinS' annual subsisting certi- in addition to thos~ 1L~"1 '" servtces usually ikales as snch, and resirlent in. Saskatchewan, I requirc(j of a solicitor, the .ices payable to tlle in accordance with Rules 96 to 109, which SOlicitor are: apply in all such estates respecting which 1 On the first $10,000.00 or portion Grant!. of Probate or Admmistralion or i thereof, ot the vruue Of the Re!lc.1Iing or a Second or subs'equent grant estate ___ .3 p!!r cent. i~sued on or after that dnte. On the nett $90,000.00 or Il<)rtjon

(2) In Rules 96 tr, 109, both inclusive, the thereof _2 per cent. words "feu" i\lId "costs" '. : On the next $200.000.00 or poction

.(i) do not include proper iliSbursemenrs,'lj' thttl'O( ---,.-____ . ___ ,.I per cent. ,!hich shall be allowed 19 a solicitor in ,addi- On tlle e,"CCC$S over $300,000.00 3.ciditionl'li Uon, and" I f~ mar be charged. th~ arJItlUnt thereof to

OJ) do not in~lude :my_ reJTIuneration to btl !fCh:rmll1~-d hl' the tjllw <;~nt. the r~ui,ts which a solicitor may be entitled as a per-- achieved 'and the: amount in\"'lh'ed ~nal representative. e""ecutor. administrtl.~ 1 "The alllwe fees nrc nfhwl'lf for ali I1CCCS­tor or trustee. , I) sary ~ervi~es tt> obtain a J..'rnlll uf rrohate or tJ) Cosu in an iestate in which the 'Grant' of Admilllstratioll or Resc;L!jq;: pn!paration

?i Ptobat~?r of ~gministrntJon !,rresealing . of est;He t. .. ~ suc:,ession duty Of other like muctl; or IS$lle pnl)r to the fn'st day of, relunts wlJt'lt rCl'J~urec1: ;tnd $ttl:hng all such Uuch, 1972, and th,r: cost., relative to tI. seco'nd i ta.'te$. fees or duties :l!<scs;;cd ~ tfte- Prod nee o,r ~l1hsequcnt It'l!'nt i~sued, prior to th~t dale r of S[l.~klltrltl!:\"':l!' or ~;uI~I,\., or Iil"~:h('r ta.:ting sn .. .!1 b~ ,dctermllleU In \'Ittordantt \Vtth' the I authonty (not Jnduding any aroficacon to a r~Ie\'en[ provisions of Rules 96 and 97 with' Judge of Ihe Court or (lthel' Guurt ;trocec/I­:lcilcdu1e 1_ "C' as thW, existed Or ').;'l:ist prior )' mA'~ with rtsflttt to liuch ~. fl!eS or to) that ,late. : ditties): and any sen-ices ::ttt<m4ing to the

07 WI 'I t ' • transmissioll of the a~5e's of the estate into _' I' lere tosts are eXJlrCs.~Cf as a per- ! the name or names or the Jl'~rsorrn1 ~<!present­

~;-:'j:;gc of the Vl'Ilup. of the l'S~lte. thnt v'llne : alivet!, ano ullc~ ar'pljC1.loIe into !lI'rc- names _,:,1 I bo:: deCl':1w to I:>e t~: LO~lt! vallII'; o,r aU 'of the hCl:d,dari"~ I)nlinnry aer.dann's, ~~,ets oJ the est.nte to be admnmtert'!lll:-' lite -'corre5{lQUllcltCt 1'md wh('re necesstr)," obtain­!: ..... s or .Saskatchcw>lI1 <U1d rt<]uired to be, jn~ the Official Guardi\uls c('ni!!iclte aud m._lurled. III the Sl,~tellwlt of as_~~t:; of the advenisillg fot" c.t<!l"iito'" es'a1e referrc:d to In R,ufe 15, ann rloes not. ' l~. ki fud~ gifts mafle inter vi ... o~ property held 100. (n The fcc! for which ~isioll is ia joint lenM'-')'. ihsu;ance,,' Mnujti~. and mnrle ,ill Rur~ 9':! :1nd lOn, apply ttl (t:ftate::' of p~ Isioll'; not J?yaQ1c to the estate, ,thr. value aV('r;.lgo:: colnprCXtt}'_ c>i anv ber:elit9. lJIIder the Citna!fa Pension (2) When:: an estate is of an lCC~plionar P! 111 ann ocher 3'isels or benelil!, not required Illlturf', h~jn.; ~t7ier u!\Ul'l.;ail,· SiUlple ~t" com­to pass throl:gh th~ hantls of the pcrronnl plex.:t judS'!'. upJn tile ilPJlI~caticn "f a P'"r­rCjlre:<e:ttative or repr-es-\!ntatives. . son:ll repr(!S¢1t:ui'!e.- a hcroeficiar)', "l1l" a soli-

98. Where the pc~sonal rcprcsent.1.tives" of citor, m.worder that lcssrr or grl!:Oer iees be a d~c~sed pe:i"SOn f1erfonns all the dillies_ allowed to tb:: solicitor. r~::\UJr.ed of a personal reprcsuttative. a.uo the . (3) 111 :1 C!!Ie to whkh snt-·rufe (2) $-)licitor retai."Ied by him performs only thnse apl1Jies, the jud,;:e mow f.,r;:hlVitb sct.1:!e Ihe i:!;;al ser.,.icC-.i Usually, requireU' ot :1 soHcitor_ antnuut of lite vatiatinil. ill suc,i. a cas:e. or where the perronal repre- " lOt. In ruldition to 1h<: fees prm;icfcrl in i~tatiVC' i! a solidt,)r aJJd r.rl'otmS sudl Ruks Q9 :uvl 100, :1 !nlicitol" if enri.t1ed to. !ervi<:eS, the fee payahle to- the «Ilkitor for 'receive paYIl"!ent for the: 1"011')\'1\1;;;-: It!?:t,se~ic~ ,is. sixty Doer ~01t Qf_.lbc_i::'~ . (a) ArVC'lrnnr.es ill ("(turt ordI01l"Qb~'TS as

taxed or ;\I~w\'(l hy the: \lre.~illin:t J,,""dgc. , (b) St:""Vict's with res-peet to first Passing

of n<:<:olClts of a pcrronlll ~1"~selHathe bruet1 011 total receipls are ns SotJoWS!

(i)' On the first $10,000.0,) or­P'?!"tion thereof (Minimum ~.OO) _____ ,.J/4 ot I per c.ent

(ii) On the ne~t Sl90,tXfJ.OO or porti'Jn th¢fCO£ __ 1/6 oi 1 per cent

(iii} 011 the ~t(,S5 over $200,000.00 (stlbjc:ct to the discretion (If the Sllrrogat~ Court fudse 011 p.1~~iu~ vf aerOIUtt,.) . '/1!!.~t J l>er •· .. ~'t

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, , (c) ~ervices with. respect to subsequent

paS:iing of accoU(tts - as a1JO\ved by the Surrosate Court Judge.

Cd)' Actirtg on the sale ot an estate asset, (ej F'mding a purchaser of an estate;

asset. 102. Wherc-,all of the beneficiaries. who~e' specrive Interest in an estate are affected , the: solicitor's iee, are adults and consent , d approve an agn:ement made between the I' lidtor and- the personal tepr~tative with syea to the solicitor's fee, subject to rmel ...

I'

. the Court, the solicitor h entitled to that, reed iee, if all ,those b'eneficiaries ~ve been 1 f'\'M with oopie-s oi Rules 96 to 109, inclu· \'e" beiore the 5ignin~ Qt the agreement. r 103. The rollcitOr retained by the persona!, t:Pres~ntative, shan not· ~ccept payment fot

~rice; to, the persOnal t~resenw:i\"e or 1:0

r: estate in c..'Cceu of that prov.ided b:! these 'Ies .

. lO .. t (1) Where tUere is a diSPute .b to­es b.,twem a solicitor ~d ~ per~on3! repre~ tati\"e, or btlween '" soliator and a beae­

'a,),. either pam' may apply to a judge to

~-e the issue: detennined b" tnxation of the

'ic;i!?r'~ bill 01 cOSts, ~'C'.,~. 4eclsion Upon aue,lteus, ' .

(2) Bills of Costs sutmi~ fat ta."C3tion I be itemized as to services rendertd, and

l ..... thT,~~ ~~rgcd. with resi>e~ to cadl of

r;j, T~ati.,n shan be conducted 3t a time

Id p!a.o:e lI;ppoir:ted by the :iuclg<lj alld the 'iot ... r shall be allowed ~uW.cient tbte for epardtiOIt of th~ bile ' (-0 A copy ot"'the appoir,l:Cleht and'of the, I slu:.11 be ~er\'ed upon all interC$t~ pet-

ts; .ruxl the manner, Ot service· and length· ,::.otice shi<ll, be as the jud~e may direct.

; ;0; .• ~ solicitor for any' person other than $(,Iicitor lot the personal reprP.${on!nlh-~'

operl)' aUCldi:1; on 3. ta:'(~_don of tb; Bill. Com of the ,0Iici':Qr ao:ting for the per-I

.al :epresmlath-e, or on a {l:13sing of a, sora! reprc5cnt:uio-c's accounts may be'

, J~:ed .:t. fee in the di3ttetion of the judge."

106. In contentlous matter3 a' solicitor shall a!!<;.wed such i~e3 as: tne p!'~~idbS' judg~ I

s adequat~.l. . ' . ' , ~

Oi. The rout:! mil}"' clir~ct pa}'mer:t oi. any I u. indililiJ1; {n£l!'er disbur~emen!s. trem

eilate' generili!y or by an'- leS'::o.tee. her, '. ,';: J:i:tson interested therein, or from iund3

Qf t~.e estale;,be(on.~ilJg t~ any leptee. heir, or ,erson illter('Jtca dterem.

lOS. \\'here a judgc is satisii-::d that ~eps hast: been taken br the solicitor' ior the es::l.te. Crr tile b~eE!d.:lry. or both of them. \ :lC: of co~, Iv expedite proceedings. save cosa or, cOl11promise nttions or di~pl1tes. a 'i~e ::-:3.}: be ~!owerl U:ere!or in the J~scrcti\Jn I <): the Jud;-e.

1li9. \Vitnesses are emit!ed to the'sUIne fees 1 and conduct rr:one-o.· as are allowed in the '1 ·eaun oi Queen's E~nch, ,

, . . , 1. ,.11 ......

i')J; "/

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[HIGH COURT OF JUSTICE]

Tate v. Warr~n SE::-""10R )U$.TER prARRIOTT) 10m JA~UARY 1963.

Practice _ )totor vehicle action - Adding' registrar as defendant -Jgrisd.1etion _ Notice - Costs -=- Amendment of style.

On an application to join the registrar of motor vehicles as a defendant under s. 12 of the Motor Vehicle Accident Claims Act, 19f)1~2, c. 84, whether by the registrar or a party, the master bas jurisdiction to ma.ke the order. Also, notice ot the application should be given .to aU par~leS' ,­and the regiatrar, and costs of the appUcati01,l should be In the ~ctlOli. Further, the style 'of cause should be approprIately amended not In the wl'lt but in the statement of claim and all subsequent process.

THIS was an applicaion by the registrar of motor vehicles for an order adding him as a defendant under the l't/otOT l"ehicle Accident Claims A.ct, 5.12.

The section of the statute under which the application was brought reads as follows

Where en action has been commenced in respect of the death of or injury to any person occasioned in Ontario by a motor vehicle and it is alleged that the death or injury was caused or contributed to by another nJ.otor vehicle, the identity of which and the_ owner and driver thereof cannot be established, the Registrar may be added as a deiendant on the application of any party and shall be added as a defendan~ on his own application.

J. V. La'wer,- for the l'egistrar applicant. J. D. Ho{(ling, for the defendant. Xo one for the plaintiff.

SENIOR }'IASTER (MARRIOTT) :-The section does not provide bef01,'e whom the app1icatiolds to be made but as the m~ter cI'?arly has jurisdiction to add pal'ties uncIel' Rule 13~ I :1:11 of the vie\\" that he has jurisdictiqn to make an order adding the reg~stl'ar under this s<:!ction.

Second1y," eve'n' though' on an application' by the registrar the _Court \is' obliged to make the order 'in a proper case, as it is obvious that the pa.rties to the action will be affected by the order, foHawing Rule 215 notice of the application should be given-to ail parties. This has'been done here. v,'here

,the applicatioll' is made by a party the- regisb'al' should be , ginn ·notiee. I, .' " '

. .~s to costs the registrar is not asking for costs' and 110 -costs should be allowed 'to .the parties should they attend on the motioli" unless: they ,:wish to make valid submissions for consideration' of the Coun'and if such costs are ordered they­~hould, be )ha4e in the adio'n and not qf ,'coui;se against the registrar, These observations as to costs of course are all subject to the discretion' of -the 'officer makirlg the order. I merely state what appears to me should be the general practice. In this case for the. reasons stated costs should not be awarded to_the defendant.

As to the style 'of cause to' be adopted _ after the order adding the registrar is made, the style of cause should not be changed in the writ of summons but commencing with the statement of claim it should be amended by addi.ng the registrar a.,s a defendant followed by the words added by order- pursuant to s. 12 of the Motor Vehicle Accident Claims Act 1961·2.

The order should permit the plaintiffs to amend their state­ment of claim as so advised within ten days of the date of service upon their solicitors of a copy of this order. No order as to costs.

Applica,tion granted.

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'QL'EEl.">l'S BENCH: . "

TUCKER, J.

Kinin","r v. Kalthoff .

Judgments ~nd Ordlf1:s ...., fopplicationafter Judgment to Vary Ordlfl: as to. Oosts - JUrisdiction of ,Trial Judge - Effect of Delay. . . .

-, .:\' trial' judge' has : jm.tsd1cUon to. entertatn; even alter the . time tOI"

" aop~al has elapsed, ail: application to' vary his judgm'ent: see (1964; : .w :\"",VR 5<!7j at -559. 'l~yg118 11. Zav,,'ftkowS'ki- ana·-Ross: (No.2) (lS2$] 1 WWR 753, at 754, varying (19281 1 WWR ~2. 2Z Sask LR 305. 12 Can Abr 872 (C.A.). followed. '

}'_"l ,lncreas,e"Jh llle courtsel lee 'may 'be ji,"Iarded eVen though the tonnal judgment has Wen entered. Weats-Ide Const. Co.' 11. Bask. o<>u:t. I?'Iaw", 'Office (1~9·60) 30 'VWR 61)9, 1960 Can Abr 355, applied.

Eut d.elay In making -an' appllcation .to. vary an order as to costs may be fatal, palttcularly '.'l1;t~re ,a vanatlon would .~o,r)( a harctship on the opposite party. 'Marshall 1l, Ryan ,Motors Ltd. (NO:, 2) (1922] 2 \V,\VR 140, dlSl'hisslng 'aeplicatioh to vary '(lS22J 1 WWR 3&1, 15 Sask- LR 11~,.12 ,Can A1;Ir,63.)' (C.A)" applied. ,

,j (X¢te up_ ,With 14 CED.·(2nd_ ed,) Judgments aM OrdeJ:'s. sec. 14.1

". R. 'A. Heggie, for' plaintiff, appUcanl. H. pahlemJ for defend~t, respondent.

, ' ',' ,-, ,

"June 5, 1964 .. • I ,.

i, , , C'" '"

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:Sask., 1964, Tucker, J'> Knt;;:lliCE:R v. KALmoFF 503

TUCKER, J. - 'This 'is a motion on behalf of the plaintiff to detennine that the limitation imposed by subsec. 10 (a) of Q.B.R. 549.be not applied to the plaintiff's party and party bill of costs Of, in the alternative, to 'a,vard the· plaintiff a gross s\Un rn lieu of or in addition to any taxed Costs or, In the further

. alternative, to. deteqnlne that the aolicitor, for the plaintifl~ be, gt'allteq. an increa..~d ,",unsel f'!". It was launched and served, On May 12, 1964. ,

The following disposition was made of the cOsts in the judg­."ment (196,4) 46,WWR. 547, at 559, delivered by me on January

10; 19M:,' " ,,'" ' " .'

"The plalntiff 'Is entitled to the, costs of the action to be iax~d.li

When the plaintiff came to tax his ,costs he found himself faced with ,R. 549 (10) (a), which provides as follows:

',' ', ..

, ''Ex~pt wh~re' otherWise ordered in any action or pro~ ceedli1i; , ' '

, ~~ (i) , "in which the only relief claimed Is the paymel)t of money by way of deb~ damages, or otherwise, or the pay­ment of money with foreclosure or sale of property mort­"gaged or pledged to secw'e such money,

" • • • _;~no"party Ot'.',_~~ber cif. par,tie,~_ among whom- there is no d~vergence of interest or, who mIght properly p.ave defended by one solicitor shall (except with respect to the ,(!Ost of any. appeal) recover against any other' party or 'parties to

, ,'any proceeding costs exciusWe of qisbuxsements in excess of the following, proportions of the amount claimed or re­covered:' , "Where 'the amount claimed or· reci)V'ered does not exceed 'S·OO' 00 "'" " , ., 30'" .;). ________ ~ ____ :.___________________________ ,e

, , , ' ' ,

,flOn the excess over $500.00 up to $5,000.00 ,_-:0 __ "- __ 15%"

Judgmeht ,Was given for '$1',000 against the defendant and It was further 'order'cd that the defendant ttu"ll over to the plaintiff 666 "shares of :Western Clay Products Ltd. and" 666 shares in Aggregate Construction, I Products Ltd.: within 30 davs, anQ" in the, ev~nt of the defendant fai~g to do so, the plaintiff was to have' judgment .for a fUrther $2,000. The plalittiff turned over the said ,shares to the defendant within the time 1Iinlted. . ' ,

. However,' the claim herein was for $3,000 and ,R. '549 (10) (a)would appear to apply to it. '

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504 , ,~~KLY REPORTS 48WWR' . "J " , .

Counsel for the pl~inti(f strongly contended that it WO$ in­E!q1,1itable, under, the circumst~ces for this ,RUle limiting the costs to be, ,applied hereln and that I should "otherwise order,"

,It waS set out' 'in the material filed in support of the applica~ tion that the equivalent ot seven' full days was spent In prepara­tion for the trial of the action. The ti'iai' took"approximately two and one,half days. '" ,', '

Due to the' defences' raised, the Issues were, In, fact, quite complicated and Involved. The defence of Illegality, In partic­Wal', was raised by the, defendant. ,This Ide~e:nce :necessitated the consideration of' facts and circumstances In respect of the alleged ilegality which. of course, otherwise would not have had jobe cOMiderell,' ',,' ""

" Had .. fUl application to ',othe;rwfse, order been mflde to me

before the time for appeal had elapsed, I would have felt con· strained to make such an order and that the costs be taxed under col. 4.ShoiJld I 'tthls eomparatlvely late date make -this',order?" ,

!' 1 "

On the authority of Rygu. v, Zawitkm,slci anil ROO8 (No.2) (1928] 1 WWR 753, varying [1928] 1 WWR 332, 22 Sask LR 305. and the C~S~.!!, tbe~e1n cited, I hold I have jurisdfction to entertain : an, application ,to y~ry my judgmen~ In that case, :.tartIn, J,A, (later C,J:) In dellverlng the Judgment of the , ~oUrt said afp. 754:' I' ;

".;

. "Formal judgment has :not been entered. and so long as " , "an order'. has not been. perfected the Judge has power to

reconsider; but when onCe the order has been completed. the jurls~iction ove1', 1\ Is, at an end. Pr""tOn Banking 00. v. AU.up (Winiam) dl SOli,' (1895] 1 Ch 141, 64 LJ Ch 196; Re Suffield dl Watts; Ex parle Brown (1888) 20 QED 693, 58 LT9i1; 'Re si.' Ncrz"''''' 00.(1879) 12 Ch b88, 41 LT 110; Met. (Met",) v. il'IatBhall (No, 2) [1923] 1 WWR 201, 16 Sas!< LR521, dismissing application .\0 vary (1922] 3 WWR 660 (CA); Bar,iv. Farea., (No.2) [1924] 1 WWR 1230, 18 Sask LR 240." .

:J:'p~."order'ln ,this case as to"costs gtven op. ~mber 6,1927, was ,varied on March 14, 1928, Ii Il\a:,' o~ presumed from these dates that the application was made very prom,ptly."

,The defendant, however, ,argued that even if I were to hold I had power to make the order a~ked fpr, there was suc;h delay in making this application that it should not now be made. It ,vas argued that the time for appeal had· now elapsed and

- 37 -

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. Sa3k., 1964, Tucker, J,) KIRZINQER. V, KALTHOFF 505 .

the defendant had acted on the judgment by delivering the s.r.ares in question to the plaintiff and that to ma1(e an order at this time v~rYing .it would. be l.U1fair to the defendant, Coun­sel for the plaintiff explained the delay by stating that. he had not considered that R. 549 (10) (a) would be applied, and ,Vas taken by surprise in its being raised.

In JIarshaU 1). Ryan Motor. Ltd. (No.2) [1922J 2 w\VR 140. ellsmisslng appllcation to vary J1922J 1 WWR 364, 15 Sask LR 118, Haultain, C.J.S. (Lamont, J.A. concurring) said:

"r also think that this appJicatlon should have been made at the earliest possible moment after judgment was deliv­ered. 'The ··neces~lty for such an appllcation as this could not reasonably have been foreseen before judgment was deli~·ered. .' ..... '" ~ut the application should be made as soon as possible after. he has recovered such a judgment:. and not, as in' ,this case, after an .iptetval of more than a month and a half, while In the meantime formal judooment 'haS been d~llberatcly entered by the appellant himself."

Having In mind this decision, and although r consider r have. jurisdiction even at this late date to make an order ·that the c::>sts be taxed under col. 4, in vIew of the long delay and the :s.ct that the defendant has acted Wlder "the judgment. I do not consider it would be fair to the defendant for me to do so.

In Westside 00"'1. 00 .. 1). Sa.Te. Gwt: bumr. Office (1959-60) 30 \v"'VVlt 50.9, McKercher, j. held he had power under RR. .;57 (nO\,' 542), 564 (now 549 [10J [a]) and 582 (,<) (2) and '3) (no\\' 566 [t]' [2J and [3]) to order an increase in counsel :~e e\-en t.l-tough in that case fonnal judgment had been entered .. :': ',\'ould' appear to me that h tortio?'i I have power to make a slm.i!A'r or.dei·' In this case where formal. judgment has not yet :*n taken out. The fact that t have crime to the conclusion ~~at due to the delay in applying 'I should not vary my judg­:n~r:t in respect of Its provision for costs certainly doe;:; not ;;u: .. the respondent in a stronger position nOl' the applicant in a <:':eaker position either legally 'or equitab!y than each was in :::i. the We.'itside case in respect of an application for an in~ creased cOlU1Sel. fee. '

. ';;: I.

The length and, complexity of the trial was increased by the defence of illegality." Certainly the time of preparation for trial mUst 'have' been greatly increased by this defence.

Having in mind the extended and excellent presentation and :.rgu.!nentS of "~puhsel on the issues. raised at the trial and ~he time in\"olyed' in preparation and triaf. t order that the

counsel fee ofth" plaintiff's counsel at the trial be $650 and that R. 549 (10) (a) do .. not apply to such increased· COunsel fee. .

In view of the divided success on this application. there will be no costs of the application to either party.

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Guyer Oil Company Ltd., etC. [Sask.] Johnson J. 613 , . 1 SASKATCHEWAN· QUEEN'S BENCH

JohnsonJ. " :

Guyer· Oil Company Ltd., Golden ·Eagle Oil &; Gas Limited , and Husky oil (Alberta) Ltd.

v. Fulton : and Gladstone Petroleum Ltd.

(jO~t8\ ..;..' 'tong alU( 'com.p16:lJ trlal"-' Prin¢'Ples govtn"ning qu(tlltum ,- 0/ parly.a,nd·parly COBtfl "'- Increases over tariff.

In the tolloWing fiat' John~'o" J. make!j a disposition ot costs to the "suCCessful defendant following the trial of the action, (1973) 1 W.W~.i~' : The principles ·~r~ reviewed on which costs are a~w.. on $. party-and-party basis and, where e"llendirure has been lnculTed in a lohg and complex tr,ial by way 01 exnert test:lmony.', the' taking 'Of evidence on commission artd 'so on, such expendit~re ought to be recoverable" on tfle prtnelfte of fndemnit}·. Sl..::ri.Uarly ln' such 'a' case, fees for counsel. as weI as "other tariff

. ,iteIn5". ,otlll'ht, )to pe &ubs,taJ'ltially lI1creas~.

[N'ote up 't\ith' ,5, C.E.D. (2nd ed.)' Oosts. s. 90.],

. W. M:Jimiotl, Q.(J~, for plaintiffs. E. J. ~[QS8,., Q.iJ., for defendant,<;.

,18th January 1973. JOHNSON J.:-In my judgment herein, [1973J 1 \V.W.l\ .. 97, .I ,dismissed the plaintiffs' action with ,cos~ Qut reser .... ed the 'rIg~t to' speak to costs. In doing so, I cOI1$idered that counsel fee for the defendants, by reason of the nature ol.lhe suit, It,<;· complexity and length would, .undet l\!'l .. 519, 563, 565 and 566·(8), apply for a special order 'as to costs so as to, increase ,the: amount otherwise allo\ .... able. Because of the impOrtance' of, this 'matter, I think it ad\isable to reyi,ew the "jaw, app~lcable to 'costs insofar as that law pertalns to this case: . . .

, , ,.!,

. This Court has .made' certain: Rules with 'respect to costs under the authoritY· of The Queen's Bench Act, R.S.S. 1965, c.: 73, s. 90(e). Rule' 542 made pursuant to this statutory authority makes it very clea'r that, subject to the provisions of The Queen's Bench Act, costs shall be in the discretion of' . the Court" arid this is the' basic to all matters dealing With cOstS .. IIi Orkln,ThEi Law of Cost,<;, p. 14, the follo,,1ng statement appearS:

""the 'fundamental': prinCiple 'of costs as, between party and PartY Is that they' are glv~m by the coUrt as an Indemnity 'to the person entitled' to th~m; they are' not'Impo'sed as pun .. ishmen\. on the p"rson who must pay them. Party and party ,costs are in effect damage.'), awarde~ to the successful litigant as compensation for the expense to which he has been put by reason of the litigatJon."

, , ' " ,

'"

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614 WESTERN WEEKLY REPORTS (1973] 2 W.W.R.

The learried author acknowledges the source of this state­ment as Hatold v. Smith (1860), 5 H. & N. 381 at 385, 157 E,R. 1229, where Bramwell B. states:

"Costs as bet\veel1 party and party are given by the law as an indemnity to the person entitled to them: they are not imposed as a punishment on the party who pays them, nor given as ~ bonus to tpe party who receives them. There­fore, . If the extent of. the dOl1111ification can be found out,

_,the extent to 'which ,c~ts ought to be alloWed is also a..scer­, t.;tined., :', Of cours~,_ I do not say there are llot exceptional cases, in which certain arbitrary rules of taxation have been lald down; but, as a general rule, costs are an iridemnIty, and the principle Is' this, - find out the damnification, and

, then you find out the costs which should be allowed."

LB.ter in CPu.dry. ". Sain.bury, (1910] 1 K.B. 645, Cozens­. Hardy M.R. in referring to Harold v. Smith, supra, stated at p. ,649: .

I 'Vrhat 'is; -a decisIon which has remained' undisturbed for fifty ye~, and ,i am not-' prepared to depart from it."

In 'Ryan 11. McGregCff, 58 O.L.R. 213, .(1926] 1 D.L.R. 476 (C."".), Mi~.d1eton J.A. quoted Harold 11. Smith, supra, with approval, and contiTIl,led at p. 478:

uThe costs which are under' discussion are in the nature of --damages av:arded to' the successful lItigant against the un~ successful, and by way of compensation for the expense to whIch he haS been put by the suit improperly brought. The foundat1on of the po\ver of the cornmon law Courts to award costs 'was purely statutory. _ The Courts, to use the language of An old statute, \vel;"e' a'uthorized to dJrect the unsuccessful litigant· 'to make recompense to the party unjustly ve...'l::ed for the- said unjUst vexation.'" . ,

L7J. Adam.s 1J. London lm'{ffoved Motol' Coach B-uildirs Ltd., (1921] 1 K.B. 495, Banl<;es L.J. at p. 499 said: .

• I'l'he pI'hi.c.ip~e· ~pon which costs as between ,pa.rty and party are allowed Is th~t the costs are awarded to the person clalm­Ing them as an' indemnity .. That being the principle, it fol­lows that anyone who is not In a position to claim to be indemnified is l10tentitled to art order for party and party costs." "

,That party·and~party costs are awarded as an indemntty to the successful' litigant who' claims them seems beyond all doubt in the light of these authorities. The task therefore

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Guyer Oil Company Ltd., etc. [Susk.] Jolmson J. 615 . ,.'

ot a' ta:'O"ng officer, sUbject to the RuleS, is to detemltne the .. "<lent of the indemnity whjch shall be paid by the unsuccess­

. fu1 'Utigant to .the spccessful one. Bearing that principle in mind there appear to· ~ five areas in the tariff of costs as provIded in the Rules of Court which deserve consideration Iil this· case now that the Court is moved to exercise its dis­cretion in making an order increasing the fees and allowances aitd to' rule .on ·"dIsbutsements· to expert witnesses and others. Thi>$e areas are.: (1) Counsel fees; (2) fees for taking evi­derice ,on com,iniSsioh; (~) fees on an interlocutory application for' an injunction .arid on' an appeal from the Chambers Judge's 'order'" (4)' Icather' ·tariff items"· (5) the a~counts of expert " , . , 'witnesses 'and' ,others. '

I shall try to deal with these in turn, bearing in mJnd the indemnity principle set forth above. With respect to counsel fees,. the tariff under the Rules of Court has two items in this category, i.~., No,,'22 and 23. Item 22 provides a counsel fee with brief for trial: (a) to the first counsel; (b) to the second counselor solicitor in Important cases. Under col. 5 tho sum of $230 is allowed for (a) and $110 for (b). This counsel fee was formerly allowed to the solicitor. for drawing his brief for counsel who. conducted the trial. Today, when

. 'solicitor: -and barriSter' are one and the: same person, the fee ,is ano\\'able" to cotinSel' qua' solicitor for preparing a brief for hJmself qua balTister. In this case the same considerations applY'.to. these',items as.,to.ti1e counsel. fees at trial and I 'shall ,dea,! with, them together., In the tariff counsel fees at trial under col. 5 are $220, pe~ day for ,senior couhsel and

. 5130 ~r day fOf. junior. counsel - a total of $350 per day. It' is not :disputed that this was a px:oper case for twa counsel ~d ·indeed, ,the plaintiffs· were: $0 represented. Counsel fees shat+ld be governed ,by the complexity, value a.nd importance -:0. the litigants' of the matters in dispute. Here the dispute :nvolved a number of producing oil wells which have a poten­tial value of hundreds of .thousands of dollars, their ultimate value being, of course, dependent upon their production term and volume. The events ,~pon which the plaintiffs based their (!Iairn ,occurred about 9 years before proceedings were in­stituted' and 11 y~arS before the trial, so that the:' nonna! diffi­culty 'in searching te¢'ords, interviewing 'witnesses, finding 1oC:Uments and' obtaining evtdencel some in the knowledge or ,hand!?, of persons 'no\v d~~ased, was compounded by the efflu.-don of time. 'J..:.' iarge part of the trial time was taken up by the evidence of technical expert witnesses, necessitating ~oun.sel. fa,mll,ia,rjzing themselves with a highly specialized technology. Although .::ompaiisons with other jurisdictions

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616 WESTERN WEEKLY REPORTS [1973] 2 W.W.R.

are of little help in Saskatchewan some idea of counsel fees . -, allowed- in c'ornplex and difficult cases may be obtained from

a perusal of the reports of the decisions at ta."dng officers in Ontario: 'see' Olarke Ii. Attorney· General.,.". Ontario et aL (No.2), [1967] 2 OiR. 393, appeal abandoned [1963] 1 O.R.

. SOOn; also Formea Chemica:z~ Ltd. Ii. Poly11Wr Corp". Ltd . . (No .. 2), [1967] 2 O.R. ·424; 63: C.P.R. 22S. In the former . ~ counSel fees ofS17,ooO fOr a 17% day trial were allowed. In the latter case fees (including counsel fees) were allowed at $125,847.· In this case the trial OCCUPIed 93 days. It must be borne' in- lriJnd, of course, that' these fees cover certain

, .tteinsff' , whiGh ~~ sep~rately provid,ed for in' the Saskatchewan

tarl . .

. RetUrlllng to" the instant· cas'e I cannot possibly conceIve that today counsel fees or' $350' per day for both counsel wouid be adequate In'-the c'ase presently before' me. Accord·

. tngty,' I order that on taxation the c'ounsel fees, including counsel fee with brief for trial, be allowed at' double col. 5. ,-" , .' , "

, Rule 566(e). provides for ta.xation of fees of; counsel and the .necessary expenses in, ~king evidence On commission b~ yond the jurlsdiction." In this case such evidenc~ was taken '~nd, in; my view quite properly and necessarily so.' Because' of the nature of the case it ;was quite reasonable for counsel

.. to ·,travel to take' this evidence ,rather than: instr:uct counsel for "this -purpose In :,the, jurisdiction where the witness was present. The fee for examination ex juris of . the ~itness Christiansen is to 'be taxed, on· the basis of four times the

,fees ,allo\ved .under. 'col. 5" but all other fees allowable in con­nection with this examination shall be, . taxed on the same basis as set forth hereinafter for the "other tariff items". Tariff item 15 (d) provides for taxation of reasonable travel­ling expenses for the solicitor a~tending the examlnation at l' place 'elsewhe're thart at his residen'ce. ' ' .

'rh~ \i~fendants a~e entitled' tq t·8."Cecl qosts t~c~rred in oppos­ing the' interlO(!utory 'application .~9r an ~njunction J;l1ade by the plaintiffs and the appeal from the order of this Court. The costs allowable under col. 5 for this matter are patently too low and o;t,;U be taxed on the basis of double col. 5.

jlOther tariff items" are most inadequate in this case be­cause of the complexity, the length of time consumed in per­forming all services, and the difficulties occasioned by the effiu.'Xion of time. For example, the fee allowable on exam~ ination-for-discovery is $40 per each half day. I direct that all !lather tariff. items" be ta."(ed on the basis of three times col. 5.

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, ,

, .'

, , Guyer Ol) Company LlIl., eto. [Sask.] Johnson, J. 617

, , Expert "itn~~es, were called by both'sides anll Indeed their evidence OCCQpied a large part ,of the trial time, of 19 days. The anticipatio~ by' the defendants of the expert evidence called on behalf of j the l'lalntlffs. and the n~d to call exj>ert ~vidence on the, same matters was patently, -justified.- Rule 563 states; , , ,', I '- ,

u56S.' The 'court "may allow such just and reasonable charges and' exPenses as appear'to have been properly Incur­red' In pr~i.uing evIdence and the attendance' o~ witnesses."

:I'his Rule, l)a~ Its, origin in the English :l\ule being O. 65, ,,) R., 21, ~eg. 9, wlllc,h Is, Identical in meaning io our. R. 563.

Tllat thiS Court has jurIsdiction to allow the professional ac-" coUnts Ofgeo!ogists and engineers called as witnesses Is be­

yohol ,dol,lb~ and a reallin~ qt the cases on the aforesald Eng­lish' Rule indic'ates that iri a proper case such accoUnts should be allowed. From"a- perusal of rilY' notes taken 'at trial, it Is clear that Laverne Hogg, Noel Cleland and Ralph Cheeseman

".ach sj>ent • great deal of, profes,lonal thne in preparation for trial. The affidavit· evidence indicates that. their respeca

, Uve accolUlts have' been paid' and are' fair and reasonable. ''-'. ' I have no hesitation in~'dH:ecting,the taxing officer to allow

them. ' \Vith respectl to the' accounts of Riley's Data.share In­ternational Ltd. and' Hallburton Services Ltd., it is my view that· these wefe properly Incurred ,because the witness from each, company was necessary but was not subject to the wrIt of subpoena: of· this Court,' and his attendance couId only be assured by· payment· of. a: reasonable fee for service and rea­sonable expenses.' These' accounts. will be allowed .

. Th~ m~tter ·may )J~ spo~en, tp again if clarlfiG~t1on is nec­essary or further directlons' required. However, I should !polnt:' bLt( ·that' I do' hot' wish, at this time. tor: assume the duties of tIH~' taxing' ofiie'er.

) ", ,

, ".'

. ,e,

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SASKATCHEWAN .QUEEN'S BENCH

MacPherson _J. Halg v. Bamford .t aJ.

co.~ts _ Expenses of e:x:pert witness - "ilhltUlernent oj SUCC8SsjuZ party to tax in fun. ' ,

A., successful party whose case required and was dependent upon th"! eVidence of an expert witness is entltied to cLa!rn the full exp&nse of such witness, fncludtng time s~nt in consultatlon Mth enunsel in' '_preparation [or examlnations.!or.dlscoveI'}' and other ~\'1dence beYond his own. , ',' •

INote up Mth 5 C.E,D. (2nd ed.) Costs. s. ea.) . R. W. Tltompson, for plaintiff. 'J E. R. Gritz{eld, Q.C., for defendantt.

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378 WESTEP_'" WEEKLY REPORTS [1973] 6 W.W.R.

25th July 1973. IvlACPHERSON J. :-1 rendered judgment fot' the plaintiff after the trial in this matter last -October, [1972] 6 W.W.R. 557, 32 D.L.R. (3d) 66. Two months later coWJSe! appeared before me to resolve this problem in costs. Because my earlier judgment is under appeal, counsel told me that there was no reason to hutTy' this one, and I have not.

In the bill presented for taxation, the plaintiff claimed for the sum of 51.673.14 paid to the expert witness. Mr: Brennao. The defendants objected. The Registrar was unable to re­solve it and the issue was referred to me.

Since I reserved this matter, my brother Johnson has had to consider a similar one; see Guyer Oil 00. Ltd. v. Fultcm~ [1973] 2 W.W.R. 613. I agree with his reasoning.

He was there dealing, In 'part, with the expenses of expert witnesses. Tnat was a caSe in which oil companies in contlict respectively called experts to testify. Johnson J. held that the successful pRrty was entitled. on the prinCiple of indemni­fication. to recover the costs of its experts in preparing for trial and attending.

It seems to me, that the POint. Is, even stronger where the plaintiff's clalm is in professional negligence, as it was in the case ~·ith which I a'in 'concerned. From the inItiation of the matter. the plaintlff lhas, ne~d of' an expert to advise upon and to e$tabllsh the standard of care, the breach of which is -the cause" of action.

,A considerable po'rtion of '11.,'11'. 'EteMan's acc_o~tnt was for tUne sp'enf in consultanon with counsel 1ri preparation of the examinatfons-for-discovery. and other evidence over and be­

. yond the time essentially spent In preparation of his own evi ... dence. I can well understand that cOltnsel and :Mr. Brennan find it next to impossible to s~paI'ate; one, ~m the other, that is, the consultatIon from the p'repar~tion of Mr, Brennan's testirr.ony. ;" ,

Mr. Gritzfeld argues that R. 563 under which any allowance must come cannot possibly include consultations. The Rule reads:

"563. The court may allow such just and reasonable charges and expenses as appear to have been properly incurred in pro­curing e\idence and the attendance of witnesses,"

He argues that consultation could not relate to c'procuring evidence and the attendance of witnesses".

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Haig v. Bamford et 01. rSask.] MacPherson J. 379

I am Inclined to the opposlrig view. The RUle allows charges and expenses" firstly, for procuring evidenc~ and, scc~ undly, far the attendance of witnesses.· The verb "to procure" ~'Onnotes" py dictionary definltion, to bring about by particular care and, effort- .or to callse something to happen or be done. r! .one uses these broader connotations, then the plaintiff is ~ntitIed to ch.arge ariq to recover far the work of Mr. Brennan in consultation. '!'he joint effort of him and counsel caused '!he evidence to take fomi and to be presented iiI an .orderly, . o:oncise and satisfactory, manner, Certainly this is part .of orocl)ring eviden_ce. The action would 'never have been tried ;dthout him Dr some other expert.

A p1a1ntiff in a profession~l negligence case has a severe rlisadvantage because he faces the professional expertise .of rhe defendants. It is no injusti,ce to interpret R. 563 in a manner' which compensates for -that imbalance. '

The pIal nUff, may therefore tax agaInst the defendant the '!ntire "account of l\1r. Bren'nan. AU of his work wa.<; done ~ince the action was commenced.

" The plaintiff shall have" the costs of the application.

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28 WESTERN WEEKLY REPORTS [1977] 1 W.W.R.

SASKATCHEWAN QUEEN'S BENCH

SIrois J.

Ka.ngas at aI. v. Parker and Asquith " .

C'nt$ - Doctars testifying in action alleging professionaZ negligence: , "gllinat anaesth6tiSt and denta.! surgeon - Dor;tOT8' lees estab·

t..,Md by medical proNssion not lees payable to .doctors ~ 'witnesses In tiial - aomplea:ity and ~mportance 01 action (Ut

basiS lOT increasing amount, of lIariOtl.'J tariff items., .

On a'n appliCation seeking' cUrectlolUl as io' costs folloWIng the plain. ,tiff's successful acti6n In lrotesslonal' neglIgence against the delen­dants, an anaesthetist an a dental surgeon ([1976] 5 W.W.a.. 25). the questions to __ be decided ~cluded ,the amQunt medical experu ware entitled to receIve tor their attendance 'as witnesses at trIal and the applicability of increaslng the cost taxable. The court observed tHat lt is presumptuous .for a, medical man to sUbmit his account tor services rendered in court based upon the taritt' of feu established by the medical llrofesslon rather than the tarlf! established by the, legal profession: a doctor employed by a uni~ varsity had hIs account reduced from $3 9W to 161,950. T-lle <:sse being one" ot complexi~ invOlving extensIve medical evldenC9 and L'l'I.portant not only to e lltigants but generally in the adminf9tra~ tion of general ariaest esla outside a tiospltal, the tariff items in. cludIng counsel fees were increased.

(:-late up with 5 C.ED. (West. 2nd) OostG, 8S.' 64, 86.]

. D. ~I. Shwmiatcher) Q.C., for plaintiff. ",R. l!. J.llc~ercher, Q.C., and Mr. MacLean,"for qeteadants.

. ·(R~na No. 418 QJ3.)

4th November 1976. SIROIS J.:.,...The plaintiff has applied herein by notice of motion for directions as to costs in this action. I ha\"e had the good fortune of having recourse to two decisions of my brothers MacPherson" J. and Johnson J. of fairly recent vintage on the matter, l,e., Haig 'V. Bamford, [1973] 6 W.W.R. 377, and Guyer Oil Co. Ltd. v. Fu.!ton, [1973] 2 W.W.P~ 613.

There is no doubt that the issues to be resolved in this case required and were dewndent upon the evidence of expert wit­nesses. No less than 13 expert witnesses (including the defen. Ca.rtts) testified at the trial. The cas~ lasted ten full sitting days at the end of which time the court requested written argu­ments. These were filed durIng the next three months and the judgment issued early in June. "

The plaintlfrs case was in professional negligence involving" an anaesthetist and dental surgeon. Consequently, it goes \'t'ithout saying that expert evi<;1ence was absolutely necessary to ad\1.se upon and to establish the standard of care the breach of which constituted the caUSe of action. And f1 there were

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Kangas et al. v. Par1{er, et~. [Sas~.] Sirois :J. 29

physicians and surgeons, dental surgeons, oral SUI'geons, path­ologists and anaestheti.sts. who testified at the trial for both ~des. The successful plaintiff is entitied to claim the fuJI ex­pense of such wltneS$es, wIthout whom it would 'have been Impossibie to establish. her case.

Our Court of Queen's Bench R. 563 pr9.\1de~ as follows:

,"563. The court may allow such ·just and reasonable' charges ~Q expenses as appear to haVe been properly' incurred in pro--

\, . curing evidence. and the attendance of v..1tnesses.:" ,

, The ·plalptiff. has,' paid th~ ~cc~unts of her' eXpert' wt~esses (except th'at of Dr. C. Hope,with which I "ill, deaBater) as submitted an9 .. I~ enti"Ued to be reimbursed. for these,disburse­ments. However, I would like to add a few, comments with respect to these accounts. In this, jurisdiction, physicians and SUrgeons are Vaid for their, professional services on a tariff established by the College of Physici""" and Sura""ns through ,the Saskatchewan Med!cal Care Insurance Commission. As a i rme, all residents of the ·province have thElir'meQ.ical costs paid by the 'commissiOIi. The medical doctor does not send a b1ll to hIs patlent"and"no money changes hands. between the doctor and, t;he patient. It is a wonderful ~heme for the medical profession who' are' never left with bad accounts re­ceiVable in their ledgers. , It, is ~ual1y wonderful for many people who othern·jse would' be clearly unable to pay what would seem to them as crIppUng staterrients of acco1.mt. So any patient who consults a inedi~ m";!' in tlJls jurisdiction has his fees paid according to the tarIff establlehed by the medical profession - or at least after 'consuitation wjth that profesSion, ....;.' and there is no quarrel. with tha~ situation.

, , However, when a medical man is, wIth or without the assist·

ance of, a writ of subpoena, called upon to testIfy In a court 'at law, he then enters the ,field of another profession equally as (evere,d as his own, and the' rules of the lei"al profeSsion

, then, it. s~ms to'me, ought to prevail. It is rather presumptu .. OllS for a medical man' to ',send his· accourit for services ren­

, d,ered in court' to his l',,-yet b<lSed on the tariff established : by:. his, profession, rather than that establJsheg' by the legal

profession. .:Any .citizen who is called: upon to testify ,m cowt or tO I serve on ,a jury 'is discharging one of the 'mOst highly regarded, "and responsible roles -in our free SOCiety - to see

, that justice,prevalis. The taSk that he fulfils goes beyond the realn) of mere monetary compensation. The tariff of costs in e~tence in our province, and more particUlarly Sched. IV In O:vr Rules of Coul1:, sets out the monetary rew~d 'payable

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30 WESTERN WEEKLY REPaR"S (1977J 1 W.W.R.

to various people '-who appear in court. For instance', nou­profe;sJonal. people and interpreters are ehtitled to a fee of

. $10 a day; jurors, $15. day; professional witnesses, Includ-ing physicians and SW'geons, $100'oQ day'; consultants, $125 a day. Among .the fees pald by the plaintiff, one anaesthetist

-charged $150 for his attendance in court lasting no more than .H2 IP-OlU'S one everung. Although slightly in e.'"<:cess· of our

" t,aritf 0[. costs, this amount was acceptable. F1yirig condit1ons were not Very, good at the time due to- freezlng rain and on nm consecutive ,days thJs particular witness spe~t a total of 611, hours at the airport in Saskatoofi for' which he charged 8390., Thls amount doeS' not, seem reasopable to. me; tbls doctor could just as well have 'been Idle due to some Patients

,: : not being.' able to keep their appqintments. Another witness, a derital surgeon, charged $705 for 1% days lost from his

", . omee:' He was no more than 'y. a day !l1vlng his testimony -,a total of two hours. His charges- seem 'excessive. An, oral ~eon charged a gross lnGome loss for one day as $750 for

, gi\in'g his eVIdence. As. I recall, he Was on' -the .sta,nd 0:0 more than th.ree hoUl'3. These charges~ too. seem excessive' for~ e"en though be lost one day from the office, he would not have' netted that amount had he not been cal]e(! upon to testify. Thate again the dJsparity- between the" legal tuiff and the amounts 'ch~rged IS,' shocking < to me at le.ast; , _. ," .

Dr, gOllli:wh~headi th~.'~epartments of anaesthesIa both ~t the:- t:,ni·:el~slty_ an<;l :the University Hospital in Saskatoon, attended the entIre ten-day trial on behalf of the plaintiff.

" Dr. +¢:r}c, tr:om ,'r,?rimto rendereQ ,the same' service' to the de· fenda..,t Asquith. Both D~. Hope and York were excellent t'tit:ri~eS 'and, 'r feel, first' calibre experts jn their field of en·

, deayou!:." ,I' s.hall ,limit the following remarks to Dr. Hope, 'ho'.l:;eo;er, since ,he, is the one, with whom we are concerned. He ~'aS able to get away ,froUl· his duties at the University ~1.th no los3 in: pay. The University Is a state university heav. Uy subsidlzed by senior :governments - the canadJan people. According to the tarIff presently in effect, Dr. Hope, for 11

,daY$ in cq'l.lct, b.oth as a consultant and: a wjtnessJ 'woUld receive $1,175 normally," Besides that he spent 8% days doing re·

"',,sea:ch,. ~·.or1: and advising counsel iprlor to tr181. -He swmiitted • bill L~cluding prolessional lees as well as office and Incidental .>,wnSes of $3,950. He, has already been paId $300 on acCoUnt. I was ad,ised by counsel that Dr. Hope himself would not be the re~lpient of these fees; ,that the University earmarked such S\L'nS 'for various other, projects. While the UriiverSi-ty is to be com.'!lended for liberating, some of their staff froni their rego.i!ar functions to fulfil their duties as citizens in the courts

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Ka.ngas at at v. Parker, etc. [Sask.] Sirois J. 31

ot law, it should not e:<pect to receive windfalls from los.ing lItigants involved in the leg!'ll process. These employees are already remunerated from donations, government grants and the people at largej albeIt through the' University.: The- ordlp.­'ary citizen who is currently in receipt of $10 or $15 per day 'for attending court can ill afford this exercise. While playing his role as 8· citizen he Is losing money: The very 'same rule applies or should apply to professional witnesses it seems to me. Perhaps the tariff 15 too low at the moment and should be revised. However, that is not -for me to pass judgment upon at this poInt in time. Dr. Hope's fees are reduced from 113,950 to $1,950, thereby leaving a balance payable to him of $1,650. The plaintiff is to be rehnbursed for all other disbursements appearing In para. 8 of the affidavit of Morris C. Shuniiatcher, Q.C. ... .

This IVas a lepgthy and complex trIal in which expert medi~ cal evIdence played the major role. Judgment was handed down In the amount of. $131,413.88 plus the ta.~ed costs of the actlon. Rules of· Court 344 and 549bave also been consIdered on this application to increase the costs properly taxable in this case. .

OrkIn on The Law of Costs at p. 14 states: "The fundamental principle of costs as between party and

party is tha f they· a·re given by the court as an indemni ty to the person entitled to them; they are not imposed as punish­ment on th~ person who must pay them. Party and party costs are in effect damages awarded to the succe~ful litigant as compensation for the expense to which he has been put br reason of the litigation."

Vide: Harold v. Smith (1860). 5 H. & N. 381 at 385, 157 E.R. 1229: Ryan v. J!cGregw, 58 O.L.R. 213, [1926J 1 DLE. 476 (C.A.); Gundry v. Sainsbury, [1910J 1 K.B. 645; Adams v. London ImprGIJed il10tw Goach Builders Ltd., [1921J 1 K.B. 495.

On the matter of cOLLllSel 1ees: the plaintiff was represented by two counsel as were each of. the defendants, and there ·is 110 doubt whatsoever that this was a proper case for two c.oun­sel. Counsel fees should be governed by the complexity, value and importance to the Utigants of the matters in dispute. In­sofar as thJs case went, it was concerned with the practice of dental surgery and the adminJstration .of general anaesthe­sia to patients outside of hospital surroundIngs over a gO.od portion of this COttntry. Indeed jt may have repercUssions across the enUre land and beyond our borders. In. thIs ·re-

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, ,'" spect it was a very .important case . affecting thousands of people everywhere. 1. order that in taxation the cOunsel fees, including counsel fee with brief for trial, be allowed at double colwnn five. All .other tariff items, besides those previously ~ dealt with herein, are to be texed on the basis of three times column five.

With respEct to the written. ~rgument prepared· to S1.lpport ,the plaintiff's claim, it repla~ed oral argu,roents. I be~eve it was preferable to what the, latter would have been In' that it ~·as most thorough anq comprehensiv_e. Ii1cldentally, all 'WTlt­

, ten ai'guments filed merit the same praise. Orkin in The Law of CO:.-ts at p. 143 states briefly: uArgument, whether written or oral, !spart of the tr!aland to be taken Into BCo count· in fi.:dng the counsel' fee/' I order that the number of days at trial be !ncreasedby three as part of the trial time for the_ preparation of the written argUrtlents. ;

I am allowing no costs on this application, since normaD.y it would have been made immediately following oral arguments and it is already comprised in the three additional dayS allow­,ed for the prepar,ation of written a.rgwnents In lieu: of oral ,argum,ents at. the' ~lose. of the evidence.

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Central iUortgage, etc. [Sask.] Culliton C.J.S. 163

SASKATCHEWAN COURT OF APPEAL

CUlliton 'c.J.S., Brownridge and Magwre JJ.A.

Central iUortgage anti Housing' Corporation (Plaintiff) Appellant

v. Johnson (DE~.fendant) Respondent and Chalazanet 1\.'1:- (Defendants)

COBtf1 - }i'oreclosure, action - Right of mortgagee -to cost.s on solie· itor·alll:l·aliellt basis. '

I ,', '

There is 'authority for the proposition that in an" action to' foreclose a mortgage, the mortgagee is entitled to 'costs against the mortgagor on a soUcHor·and-cllent basis, especially' wqere the mortgage itself 'so provides: Manufacturer's Life /m,UT, CO, V" 1IIde]i€Jldelit 11l1:est· ment Co. Ltd. et al., 54 B.C,R, 5, [1939J 4 D.L.R. 811; Celltt'al Mortga.ge- " Housi,'lg Corpn. v. Oonaty (1967), 59 W.W.R. 11, 61

" D.L.R.' (2d) 97 (Alta, C.A.) applied. ,

[Note up With 5 C.E.D .. (2nd, ed,) C(l8ttJ.' sS, 41. 138;1 . . " -

R. W. Thcmpscm, for appellant, 'No' one, cdn~

23rd,JuIy 1971. Th~ judgment of the Court was delivered by

Cm.LtrON C.J.S.:~n '19th September 1960 ~llke Zazelen-chuk 'arid Janet Marie Zazelenchukt as mortgagors, executed ·a tnortgage' hi: favour ot Central Mortgage and Hou~lng Cor~ pOl'lltiOri,', as mortgagee. This mortgage was registered in the proper Land Titles 'Otllce on 26th September 1960 against the tiUe to Lot 10 in Block 399 In the City of Saskatoon, Saskat­chewan. ! On 24th November 1966 the mortgagors sold the properly to one Norene Johnson Who, on 15th October 1967, entered into an agreement for sale of the property \vith l\1ichael Peter Chalazan Blld ArlelJ,e Hele.n Chalazan, as purchasers, No agreement assUming -the m,ortgage was entered into with Central :Mortgage and Housing Corporation, either by Norene Johnson or the Chalazans._ ' i

As p,ayments under the, tnor:tgage feU 1nto arrears,_ on 15th Aprll 1969' Central Mortgage and Housing Corporation com~ -menced an action for foreclosure against Norene Johnson and the Chalaza"". Oh' 25th November 1970 the Local Master granted an order for judicial sale and ordered: costs payable to the mortgagee on ~ party.and-party basis.

" , .'

The moctga'ge cqntafned- an express CQvenant by the mort. gagee' to pijy, legal costs as ,between solicitor and client. This clause reads: "

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164. • , .WESTERl'1 W£EKL"< REPORTS [197"1] 5 W,W,R,

. --All solici~ot:",s, inspector's, v~uator's,an:d surveyor's fees and txpenses for drawing and registering t}1Js, mortgage and for exa,mInlng.'the.-rnortgaged premises" ahd·the title thereto, and for making or ,maintaining this mortgage a first charge on the mortgag~ premises, toge~her" ,Wit,h all swns which the mortgagee may and does fx:orn time to time advance, expend or incur ~ hereunder' as prinCipal, insuranCe premiums, _ taxes or rates, 9r In or towClrd .payment of prior lie~s, charges, encwn­brances, or claims charged or to be charged against the mort­~ageq. pr~mises Of; 90 this mortgage' or on the ~ortgagee in respect ,of this mortgage, and in maintainlng, -repairing, re­storing or' ~otnpleting the mortgaged. premises, and in Inspect­

. ing, leaSing, managmg, or -improving the mortgaged premises, 'Including, the ,price or value of: ~y gooqs-,of any sort of description supplied to be used <?~ the' moxt~~ged premises. and in exercising or e'nforclng'or-'atteinptlng to enforce or in pW'Suance of any right. pow~r, remedy, or purpose hereunder or subsisting, and legal costs, as between solicitor, and client, and an allowance for the time, work and Jxpe'nSes of the mort· gagee, or of any agent, solicitor or employee of, the mortgagee,

'for; any" purpose hereth provided' for and whether such sums are advanced or incurred with the knowledge, consent, con­

'-cW're'nce "'or' acqtiiescence of the Jl1oi'tg<i.gor' or 9thenvise, are to be'secured hereb!t"and shall b~ a charge on the mortgaged premfses, together ';,i.'lth interest thereon,at the ,said rate, and all'such 'moneys 'shall be' 'replay-able to the mortgagee pn demand, or if not demanded, then .with, the, next en~ing instalment, 'except as herein otherwise 'provided, and aU such sums to­gether with interest ther~~, ~ . included' .in the expression 'the mortgage moneys':" '

An 'appeal was 'taken by "the rtlot1;gage~ to a, judge of the Court Of Queen's' Bench in Chambers fro'm the order of the

. Lqcal 2\laster granting only p'arty~and~party cO,sts. ,The appel­lant contended that, because of the terms of the mortgage, the mortgagee was _~l).tttlE!d to its costs O,n a soUcitor"and-client ·basis. The learn~d 'Chambers 'Judge' dismi!SSeiJ the" appeal, -holding that, the .mortgagee ';va,~ 'entitlt;d on,ly to :party-and­. party costs' in -the foreclosure proceedings. ,Jrrmn this judg­ment the appellant 'ha~ app~a~ed: to 'tWa C:o.ut1=~ "

Rule 542 of'the'Queen's Bench- RUles,' 1961, 'rea:ds, in- part:

"542. Subject to the provisIons 'of The Q,ueen's, Bench Act and these, rules, the costs of and incidental'to aU proceedings In the court, including the administration of estates and trusts and compensation or -allowance to any executor, adminIstrator,

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Central iUortgage, etc. [Sask.] Culliton C.J .S.· 165

gual;'dlan, committee, -receiver or trustee, shall be in the dis· eretlon.of the court. . . -

"Provid~ th~t nothing herein contained shall deprive an executor, adininistrator, trustee or mortgagee, who has not unreasonably instituted or carried on, or resisted, any pro­ceedings, of any rIghts to costs out of a particular estate or fund to which he \ ..... ould ,otherwi$€! be entitled!'

Section 44 (8) of The Queen's Bench Act, R.S.S. 1965, c. 73, is as follows:

"44. In every civil cause or matter commenced in the court la\v and equity shalI be administered according to the follow­ing rules: •..

"(8) In case default Is made in the payment of money due under a mortgage or in the observance of a covenant contalned therein, and under t~e terms of the mortgage by reason of such default the paymen.t of other portlo.n. of the principal money is accelerated and such portions become presently due and payable, the mortgagor may, notwithstanding any provi· slons to the c'.)ntrary and at any time before sale- or before the grant of a final orqer of foreclosure, perfonn such coy· cnant or pay such arrears as are In defau~t, with costs to be taxed, and' the mortgagor shall thereupon be relieved from immediate payment of so much 'of the money secured by the mortgage· as may not have become payable by lapse- of time".

Rule 042 of 1961 is similar In effect to KB.R. 672 of 1920. 3e~tion 4:4(8) of The Queen's Bench Act is Identical to s. 25(8) of The King's Bench Act, . RS.S. 1920, c. 39. In Mayhetl) 11. Ma»lS, 25 Sask. L.R. 204', [1930J 3 W.W.R. 539, [1931J'1 D.L.R. 611, this COtut considered the question of costs in a foreclosure action. 2'vlartin J,A. (later C.J.S,), in deUvering the judgment of the Court, said at pp. 206·7:

"King's Bench Rule 672 provides that, subject to The Kblg's Bench Act, R.S.S. 1920. ch.,39, and the Rules of Court, the <:osts .of and inciQen41I to all proceedings in the Court shall be in the discretion of the Court or Judge. It also contains the following prav.lso:

./ 'Provided that nothing hereIn contained shall deprive an executor, administrator, trustee or mortgagee who has not unl'easonably Instituted or canied on or resisted any proceed~ i:1gs, of any right to costs. out of a particular estate 'or fund to which he would othenvlse be entitled.'

"This. prodso limits the absolute discretion of a Judge and preserves for a mortgagee the right to all costs, unless he has

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'unreasonably instituted or can:ied on or resisted any p~eed-5I1gs', in which case the costs are 1n the, discretion of the ~udge.' If, however. there Is no misconduct, there is no discre­tion.

.1 I

i liThe general rule in foreclosure and redemption' actions -Is :

that the mortgagee is entitled to all his costsj he is to get the J money secured by the mortgage free of all costs and expenses, i and that although he has not succeeded In establishing the ' full amoWlt of the claim he has contended for~ A mortgagee, however, who ,has been guilty of vexatious or oppressive mis- " conduct, may "be deprived ;of- his costs or ~me part, of them.

liThe rule is stated in Seton on Decrees. 6th ed.', vol. 3, p. ..i 1947, as follows:, :1

II 'Both' tn f<ireclosure and redemption actions. the mort- -~ gage. is. entitled to the costs of action (as between party and ,. party) (Re Queen's Hotel Car¢Jff, Ltd.; Rs Vernon Tin Plate 00. Ltd., (1900] 1 Ch. 792) and . also to all costs properly· inGurred by him in reference, to the mortgaged property for its 'protection or p,~eservation. recovery. of the mortgage money. or oth~n\'iSe relating to the Q,uestions between him and the­mortgagor, and to add, the amount to the sum due to- him on his security for ~rinciple and' interest . . . .

;: Ii I Apart from the question of what costs have been prop­erly incurred by the mortgagee, lUs right to the costs of a

. ~ore'closure Qr redemption 'action ,can only be "lost by positive -misconduct of a vexatious, oppressive. or frauduleilt character, or by improper resistance to the right of the mortgagor to r~eem.'

"This, is substantially 'the rUle set forth by Lord Selbolne in Oottel·ellv. Stratton (1872), 8 Ch. App. 295 at 302, and which has been followed without exception by judicial author. ity since that time.1t

'tn:' Cottererl v. Stratton,' supra, Lord Selborne L.C., at p. 302, Said:

"The right of a mortgagee in a suit for redemptiqn or fore­clos\.lIe to his gener;il costs of suit, unless he "has forfeited them by some' improper defence' or other" miscoriduct, is well ,es,tabHshed, and doe~ not rest upon the exercise of that discre· tlon of the Court which, in"'litigious causes, is generally not subject to re\"iew. The contract between mortgagor and mort .. gagee. as' it is understood in this ,Court, makes the mortgage a security, not only for principal and interest, and such ordin­ary charges and expenses as are usually provided for by the

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Central nlortgage, etc. [S""k.) Culliton C.J.S. 167

\fJSt,rUment creating the security,' but also for the costs prop­erly Incident to a suit for -foreclosure or redemption."

\Vhlle the jud.:,oment in' Mayhew v. Adams, supra, may be '-construed as establishing the principle '. that the t'C;>sts, which a mortgagee may tax as the costs of a 'mortgage action, are ordinarily limited to those properly taxable behveen party and party, that principle was modlfle(j by the jU,dgment of this Court.ln Fleck et al. v.Whitehead et a/.; 19 Sask. L,R. 64, (1924) 3 W.W.R 470, [1924) 4 D.L.R. 797. Lamont J.A., .In d~lh·ering, the judgment of ·the Court, at p. 471 said:

''The costS therefore which a mortgage~ in a mortgage ac~ tlon may tax as the' costs of action} ar'e limited to those prop-­erl~: taxable "as between' partY and party;' uniess In' the mort­

,gage the mortg~gor has expressly covenanted' to pay additional charges. (Cotteren 'I), Stratton, supra.)"

Th~' views so expr~ by Lamont J.A. appear to be ac" "pt~d by the Court ot Chancery .In Englarid. In Re Adelphi Hotel (Brighto',,) Ltd.; District Banicv. Adelphi Hotel (Brighton) Ltd" (1953) 1 W,L.R. 955, (1953) 2 All E.R. 498, Mltle' \~aisey J.,; held the mortgagee to be entitled to; costs on a -pai-tJ-.and·party basis~ he ",-ent on to say' at p. ,502:

"It suffices lor me to S&y that I put my judgment on thIs part of the case, involving, as it does a ,point of construction, on the ground that, as every taxation In which more than one ;;::r:y f in addition to the solIcitor) is Interested Is prima [Jc:~ a, taxation as between party and party, any other basis (Ie taxat:on 1s only justified when the party asking for it can sr..Q",'" that he Is entitled to it, either on some well.recognised ~:,;ncip!e. or under some contract plainly and unambiguously ('."-:;!!'essed."

In MlJlwfacturem/ Life Inl31tr. Co. 11. Independent Im;estment Co, Ltd, et ai" 54 B.C.R. 5, [1939] 4 D.L.R. 811, Manson J" ()f ti:e British Columbia Supreme Court, held that a mortgagee is entitled to tax the costs of foreclosure against the mortgagor on a solicitor-and~client basis, particularly where the mort· ;3.~e itself so provIdes,

The Alberta Appellate Division in Oentral Mortgage & H'il!.~ii!9 CorPl1. 11, Ocmaty (1967), 59 W:W.R. 11, 61 D.L.R. ~'2dj 97. \vas faced with the same problem that is raised in ,his appeal, as the mortgage there considered contained a e~al~se identical to the c1ause In the mortgage in this case, ',vh:ch I have already quoted. Allen J.A., in deH .... ering the ~.:!.10rity judgment of the Court. after a careful review of the :'e!e-vant authorities, said at p, 20:

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WEST.aN WEEKLy REPORTs [1971] 5 W.W.P..

, ,"It seems, to me that I 'must therefore hold that in an action against the orIginal mortgagor the mortgagee In this case wO,1.Jld have been entitled to add to the amount secured by the .

, mortgage, fair and reasonable legal costs incucred by him as ~etY.·eep solicitor' anei' cli~n,t in exercising or enforcing or .at-

<, ,'tempti'rig to',e~force h~s rights under the mortgage, and in con. nectiol1, with tpe collection of .-the mortgage arrears, and it is admitted th$t the solic.ltor·and-cllent charges involved in this.

'zrtatter, were', so" Incurred and.are fair anq. reasonable." _ ,

'Allen· J .A. then: went· 'on to 'hold that costs on' a' solicltor. j

and,..client ~l1sis could 1 be, charge,r;1 by t;pe mortgagee not only·: agalllSt :the original Iportgagor, :but against his, transferee as .: well, a ~onclusion with which I respectfully agree1 r

The leamed Chambers Judge, in disposlnii ot the appea,C stated .that the 'expression "with- costs to be taXed" in s. 44(8) of The Queen's Bench A(!t means costs on a party-and~pa.rtY··

. baSi,s~, 'With del'e~nceJ I ,canno~ "agree' with ibIs -hlterpretation. ln' rnY opinion, ,"with ,cp~ to, .be ta.xed" ,simply means the­,cClsts ,ordered; whatever. may be the scale or character of the: .

. " , costs. " In my" Rpinion, the weight pi ,judicial authority su~ .. , por\S the Judgment of Allen J.A. jnO~ntral Mortgage dl H01JS­-big' 'Corpol'ation v. Conaty, supra: Having reached thIs con­clusion. 1 must alia,,, the appeal 'and order that the' appellant in thIs cas'e is antitlcd to the taxed costs' of the mortgage action on a, soUcitor·and-client basis. There will be no costs in the appeaL

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CQunterclaim. of, and effect of on None where no extra costs occasioned by counterclaim: (Alta.] Barrett II.

Metzgar, {1950}1 W.W.R. 1044.

No costs not incurred by reason of the counterclaim can' be -costs of the counterclaim: f.\!an.J Kelly /J. Winnipeg (1909), 12 W.L.R. 49 (per Perdue J. A., quoting Lindley L.J.·,inAtlas Metal Co. v. Miller, [1898] 2 Q.B. 500 at 505);

It has b~n held over and oYar again that a claIm and counterclaim are to be treated a3 separate actions, and tha~ the costs ar~ to be taxed according to that principle: [:\Ian.J Kelly t/, Winnipeg" supra; Wheatley II. Wheatley (1911), 17 W.L.R. 117; [Alta.} Edmonton Iron Work" IJ. Cristall (1910), 15 W.L.R. 659, 3 Alta. 'L.R. 338. This rule is not affected by the statute, 1908 (Man.), c. 12, limitiItg the costs of an acti.on to $300: (Man:] Les Soeurs de la Charite 1./. F017'est (1911), 16 W.L.R. 395, 20 Man. R. 301, affirmed 16 W.L.a. 647, 20 MlU!. a. 301.

Effect of amend.m.ent of defence to counterclaim: (Bask.J Willard Lumber Co. u. Pinkerton (1951),2 W.W.R. (N.S.) 637. .

Where coQ..Dterclaim instead of set·off plead~ and judgment was given on both claim and counterclaim. both parties were given costs: [B,C.] Zauscher u. Earl, [l943J 2 W.W.a. 697.

Action ~d' cOU.Dte~Iailll both disnUS$ed with costs, bloqk system. App. N. items allowed in resisting counterclaim, apportionment. M.R. 977: [B.C.} McKee u. WiZ.on, [1936J 1 W.W.a. 388. .

The cosW of an action and counterclaim are dispoSed of 011 a basis entirely different from that which is appUed when a set-off is established in an amount equal to or greater than the plaintiff's claim: (Man.] Siluer u. Margolts~ {l934J 3 W.W.R.348. '

Judgment gi ... ·en' On claim with 'costs and' on counterclaim with coste: rein such a case no order is made giving to the plaintiff the costs of any issue on which the defendant failed in his counterclaim, the plaintiff is not entitled to tax the "osts

. of Sllch issues; but the questions for the taxing officer are: What were the costs really int;1.UTed by the plaintiff in establishing his claim. and what wer·e the costs ree..l!y i-:).curred by the defendant in establishing the counterclaim? {Sask.] Elias 1..'. DlfuRsen (~o. 2). [1932J 1 W.W.R. 500,

Costs of either party which are common to both claim and counterclaim should be dhided.: CSask.J .lfcJntosh u. Greeil, (19241 2 W.W.R. 625.

A claim for damages for breach of warranty by the buyer in an action by the seller may be ·set up both by way.of defence and. counterclaim:; and where the whole conte:n· is over the defendant's claim for damages, on which he succgeds, he 3hould bs\"e the costs of the action including the counterclaim: (Alta.] Forden u. Morris, {1921] 1 W.W.R. 547.

ActiOll dismissed, judgment given on counterclaim, but. on account of amount invQh'ed, defendant was allowed only one set of costs, viz .• the costs of thE;l counterclai~: [).!an.]Pomehichuk II. Gale; [1950]2 W.W.R. 66.

A counterclaim ought to be examined when dealing with the question otcosta to a.seert~n whether in substance it raises indetJendent issues or calls for the giving of e\idence upon.points which are not or would not be put in issue by a total or partial denial of the plaintiff's claim: (Alta.1 Leonard u. Whittlesea. [1918J 8 W.W.R. 215.

Where a plaintiff has recovered judgment on his claim but the whole contest in the action 9,'35 on defendant's counterclaim, the plaintiff should not be allowed to tax his costs on the same scale as if his claim had been contested throughout: [.-'\lta.J Norton. u. Smith, [1920J 3 W.W.R. 553.

- 58 -

-

"

188 WESTERN PRACTICE DIGEST

Where a counterclaim involves the same matters of fact and law as the claim, and costa are awarded on both the claim and the counterclaim.. itenis common to 'both claim and counterclaim should not be apportioned but 5houid be 911tirely disallowed upon taxation- of C03ts of counterclaim, and the counsel fee to be allowed on the counterclaim should be the same as would be taxed on a defended action unresisted at'the bearing: (Man.] j"liddleton !), Black '(19!,?), 2 W.W.R. 869.

Plaintiff succaeding in part, defendant failing on counterclaim, judgment without costs, disposition of costs on appeal: (Sask.J Mennie v. McKinnon. [1931] 1 D.L.Rc 986.

Where a defendant has succeeded both on the plaintiff's claim and on his own counterclaim he is entitled in addition to his costS of the plaintiff·s actio:n to his costs of the counterclaim. so far as the total coats have been incteased by such counterclaim: [Man.] Cox tI. Can. Bank of Commerce (l9l3), 3 W.W,&. 1011.

• Whete a defence is trea~d by the judgment as a counterclaim and there is no order for set-off, each bill of costs is a separate chlU'ge to be paid by the o~er side: ~Ian.] Kelly tI. Winnipeg, supra; (Sask.] Powell tI. Montgomery (1915), 8 W.W.R.1l77. ' . .

Althciugh there is authQrity in other jurlsdictioDS fOl" the proposition that a plaintiff's costs of a counter'cIaim should include only such extra costa as were occasioned by the counterclaim, that principle has no appliqation in British Columbia, the matter having been decided by the Court of Appeal: {B.C.} W. G. Switzer Ltd. tI. Kerr, 55 W.W.R. 787 .

. ' 'On a~ 'appeai a counterclaim was dismissed and the judgment below' varied to that e~ent; otherwise the appeal was dismissed. As to costs, it was ordered that the defendant, to the action in the- court below have the general costS of the acrion axc_ept as incresed by the counterclaim, and the plaintiff in the action was gi"'en .the costs of the defence to the counterclaim. Since the resqlt was divided on the appe'al; each party was given 50 per cent of his costs: (B.C.] AUish II.

Allied EngihJering of B.C. Ltd. '(1957),22 W,W.R. 641.

, O:rdinarily where a counterclai~ .is t:~seli and ,tried in the County Court, ~he scale 'upon which the costs of the parties are to be taxed is governed by O. xxn, R~ 25 ,of the: County Court Rules, but, where the court finds both parties negligent said rule is overridden by 8. 4 of The Contributory ,Negligence Act, R.S.B.C, 1948, c. 68: [B.C.] Warren fJ. Horton (1955), 17 W.W.R.19S.

, Plaintiff successful on both clai~ and counterclaim. Special order requirad to tax' items re counterclaim which are covered in bilf re clliim: [B.C.l Kapoor u. Lennie, (1972]3 W.W.R.155.

,See also su.pra, "Apportionment of'i infra. "Success divided. where"; Cosrs. ScAI.E A.."iD QUA.'frtJM OF; COSTS. SECURITY FOR; COSTS. TAXA"l!ON OF; SET.oFF.

- 59 -

"I ,

I

TAlnrF ll" COSTS

SCllEO[)(E 1 '''8''

In tbe Court o( Queen's Bench and the District Court.

1. Commencement of act,ions. or~ pr,oc"eedings in any' manner and includ'! ng writ of' summons, petition, originating notice, or a'pplication under Crown Practice Rules (-a) Where one defendant or opposite party (b) For- each- additional defenda.nt or opposite party,

or other person r:equired to be- served

2. Garnishee Process (measured by amount recovered . after exemptions)

3. Proceedings in replevin or attachmentr-(a) When'i only one defendant; (b) For each. additional defendant

4. 'Commencement of third or additional party proceedings--(a) Where one third or addit ional party (bY For each further thtrd', or ad'ditional party

5. (a) Arranging for service of process or p.apers of every description, and service of same by mail or undertaking _to defend, including affidavit of service

or (b) Arranging for personal service in'clu-dfng preparation

of affidavit of service ·(c) In case of personal service, all reasonable

di,sbursements, in-eluding mileage at 22¢ per mile or 13.7¢ per kilomet~e ~eces$arily travelled, as approved by the Ta~ing Officer, all disbursements and mileage to be sworn to.

Column 1 Column 2 not $2,000

exce£!ding and $2,000 under

$5,000

$ 45.00 $ 60.00

3.00 3.00

15.00 25.00

25.00 40.00 4.00 4.00

25.00 40.00 3.00 3.00

5.00 I 5.00

5.00 5.00

Column 3 Column 4 Column 5 $5,000 $10,000 $15,000

and and and under under ovc~

$10,000 $15,000

$ 80.00 $ 120.00 $ 150.QO

5.00 5.00 6.00

30.00 30·00 40.00

45.00 SO .00 60.00 6.00 6.00 7.00

60.00 90.00 110,00 5.00 5.00 6.00

5.00. 5:00 6.00

5.00 5.00 6.00

6. Entry_ of appei.lr::"nc~ and serving n'otice there,of

7. (a) Defence (only) _ _. (b)- Defence and counterclaim by defenda'nt or

third party in any "proc~eding

S. Defence to counterclaim

9. Vee on demand for particulars if taxing officer considers demand was necessary

10. -"- -:Particulars

11. (a) Reply or further pleading other than a mere jOinder to close pleading tQ set down for t·rial

'(b) :Amendment to· ple"adings unless- caused by fault of party making ame.ndment

12. Joinder of ,issue 'where necessary to dose pleadings to set down' for_ trial

13. Motions and applications (a) Complex -' (1) opposed'

(ii) unopposed or ex parte (b) Simple' (I) opposed

(ii) unoppos:e-d or ex parte

14. Preparation for Examination for Discovery

corumn 1 not

exceeding $2 , 000

$ 6.00

15.00

45.00

15.00

10.00

10.00

10.00

10.00

5.00

40.00 30.00 30.00 20.00

,40.00

Cotumn 2 $2,000

and under

$5,000

$ 10.00

30.00

60.00

30.00

15.00

15.00

20.00

20.00

7.00

60.00 40.00 40.00 30.00

60.00

Column 3 $5,000

and under

$10,000

Column 4 $10,000

and under

$15,000

Co1umn 5 $15,000.

ilnd over

$ 12.00 $

'60.00

15.00 $ 20.0

80.00

60.00

20.00

20.00

40.00

40.00

10.00

80.00 60.00 60.00 , 50.00

80.00

80.00

120.00

80.00

25.00

25.00

60.00

60.00

10.00

140.00 120.00 120.00 80.00

130.00

100.0

150.0

100.0

30.0

30.0

70.01

10.01

190.01 170.01 170.01 100.01

200.01

15. Examination of parties or w:l.tnesses before trial or in ilid o'f execution for each full half day of 2 1/2 hours (:d Wher.e witness 01:" opposite pal"ty examined (b) For (,<It:h additional witness or opposite party

examined (c) For attending on examination of a party or

witness by an opposite party For a period of less than, one-half d&y these fees to be reduced proportionately.

(d) For agreeing the prop~r person to be examined as an officer of ,a corpora.tion

(e) Where a solicitor resides ?t a judicial centre athe-r than that where examination held.

16-. Notice to produce documents for inspection

17. (a) Statement as to documents (b) Fat" each additional document after the first

15 documents

18. Preparation (including inspection of documents) for trial or _n reference upon which witnesses are examined viva voce7-(a) Where not more than two witnesses are examined

0'[' their ~vidence briefed on behalf of the party taxing costs

(b) For (!ach witness in excess of two examined or their (!vi,dence bri~fed on behalf of or by the pnrty ~nxinK costs

19. Notice to admit facts or documents or admission of facts or documents

20. Setting down for trial, tncl~ding notice of trial .Dnd copy of pleadings for use of Judge

21. Spe.1king to tt"ial list (only once) on consenting to adjournment

Column 1 not

exccl!dlng $2,000

$ 25.00

15.00

15.00

5.00

5.00

5.00

15.00

.10

20.00

5.00

15.00

10.00

5.00

Column 2 $2,000

und under

$5,000

$ 30.00

20.00

20 •. 00

10.00

10.00

10.00

30.00

.15

50.00

10.00

w.oo

15.00

10.00

Column 3 $5,000

and under

$10,000

Column . Column 5 $10,000---" $15,000

and and under over

$15,000

$ 60.00 $ 90.00 $ 120.0'

30.00 40.00 50.01

30.00 40.00 50.0<

.10.00 15.0020.0(

10.00 15.00 ·20.0(

10.00 10.00 15.0C

50.00 80.00 100.00

.15 .15 .15

80.00 120.00 180.00

15.00 25~OO 30.00

50.00 70.00 80.00

15.00 15.00 20.00

10.00 10.00 15.00

22. Counsel fce with bxief for trial-­(a) 'to first counsel (b) To s(!('ond counselor solicitor in important cases

23. CounHel fec ~t trial for each full half day of t\-IO and onc-h."tlf hours occupied nfter the first full day of two and one-half-hours, a proporcinate allowance to be made for <lny part, of a half day required to conclude the trial after the first or any subsequent full half day of two and one-half hours--(a) To -first cou'nsel (b) To second counselor solicieor in important cases (c) Where counsel resides at judicial -centre other

than where trial held.

24. Adjournment of trial when opposed-

25. (a)" Entry of any ,order or of judgment for whi~h a fee is not otherwise provided

(b) Preparing and_ filing material to _note for default (c) Entry of judgment after contest

26. Issue of Writ of Execution

27. Attending on references where attendance directed by judge, ta,king accounts, 'or reference where no examination of witnesses is necessary, first hour or fraction ~hereof Each additional hour or fraction the.reof

28. ·Settling issue or t"eport

29. Obtalning· pLlymcnt.out of court, ex parte or unopposed

30. Correspolldence dllri.IlA action or procccdings--(,n) WhC\·1! sull(:llOI· resides ill: the JlIdlcla.l ccntre

,ill: whidl the act.1.~lIl is ci'lrrlcd 011 (h) Wht'rc sol J ('it 01" residcs ds.ewhere

Column 1 not

exceeding $2,000

$ 60.00

30.00

5.00

10.00

10".00 5.00

15.00

5.00

10.00 7.00

10.00

5.00

15.00 20.00

Column '2 $2,000

and under

$5,000

Column 3 $5,000

and under

$10,000

$ 90.00 $ 140.00

50.00

10.00

30.00

15.00 10.00 30.00

20.00

20.00 10.00

20.00

5.00

3~.O()

l~O .00

70.00

10.00

40.00

20.00 10.00

, 30.00

20.-00

25.00 '15.00

25.00

5.00

55.00 60.00

Column 4 $10,000

and under

$15,000

$ 230.00 110.00

110.00 65.00

15.00

50.00

25.00 10.00 50.00

30.00

30.00 20.00

30.00

J.OO

·70.00 60..00

•• Column 5 $15,000

and over

$ 260;00 125.00

$ 120.00 80.00

20.00

60.00

30.00 15.00 60.00

40.00

35.00 25.00

35.00

10.00

HO.OO (h).OO

31. Instructions to agents upqn examinations conducted by ngcilts elsewhere than Ilt place of residence of solicitor

32. Settlement of action (a) Before case set down for trial (b) After case set down for trial

33. Sale of lands under order or judgment (exclusive of attendance at sale) whether abortive or not

34. Solicitor attending sale. whether abortive or not-­(a) When held where solicitor resides

35.

(b) \<lhen held elsewhere

Entry of judgment in default for a liquidated demand in ordinary cases, (a) In satisfaction of all fees other thaH taxable

disbursements but subject to Ruie 549(10) (b) Where solicitor resides at other than j'udicial

centre, add (c) For each additional de£endant3 add '(d) For de'fault judgment ~fter appearance, add

- 36. In ordinary actions brought to recover a liquidated demand, when the defendant pays the whole amount claimed wi.th costs, to the 'platot'iff or his solicitor at any time before the time limited for appearance has expired, (a) In satisfaction of all "fees other than taxable

disbursements but subject to Rule 549(10) (b) Where solicitor resides at other judicial

centre, add

Culumn 1 not

t:!xcecding $2,000

$ 10.00

20.00 30.00

40.00

10.00 20.00

60.00

5.00 5.00 5.00

45.00

5.00

ColulIlll 2 $2,000

and undt"!r

$5,000

Column 3 $5,000

and und(\["

$10,000

$ 20.00 $ 40.00

30.00 50.00

65.00

20.00 40.00

85.00

5.00 10.00 10 • .00

70.00

5.00

50.00 70.00

85.00

40.00 80.00

110.00

5.00 15.00 15.00

90.00

5.00

-./

Column 'I $10,000

<Ind undC'["

$15,000

$ 60.00

80.00 120.00

120.00

60.00 120.00

145.00

5 f OO 20.00 20.00

135.00

5.00

5.

ColumH ~

$15,000 <l nJ

over

$ BO.OC

100.,OC 150.0C

150.0C

70.0C 140.00

175.00

5.00 25.00 25.00

150.00

5.00

, "

37.

38.

(c) (d)

(0) (b)

(.)

(b}

r~ol· C:ldl i.Hlditional dcfendant t add For payment afte~,appearance, add

P."Cj)ill"nt 1.00 of ~

hill,'of_ cost.ti fee 01\ tnxation of costs, per hour or fraction ehereof

Instructions for and preparing all papers leading to seizure under ·judicinl proccs_s

,All npplications" entry_ of, - 3nd f11 fng Order for'Sale after seizure under jllrlicial process

6.

Column 1 Column 2 Column 3 Col limn 4 Column 5 not $2,000 $5,000 $10,000 $15,000

exceeding and and ~nd and $2,000 under under ,under over

$5,000 $10,000, $15,000

5.00 8.00 9.00 10.00 15.00 5;00 8.00 10.00 12.00 15.00

:) .00 10.00 10.00 10.00 15.00 5.00 10.00 10.00 10.00 15.00

10.00 10.00 10.00. 10.00 15.00

10.00 20.00 20.00 30.00 40.00

,