Date: 20030515
Docket: T-1168-96
Neutral citation: 2003 FCT 599
Ottawa, Ontario, this 15th day of May, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ALLISON G. ABBOTT, MARGARET ABBOTT
and MARGARET ELIZABETH McINTOSH
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CANADIAN PACIFIC HOTELS CORPORATION
Intervener
[1] This is a motion by Canadian Pacific Hotels Corporation (the "Intervener") for:
1. An order providing directions to the assessment officer in respect of certain issues relating to Canadian Pacific's costs in this action, pursuant to Rule 403(1)(a);
2. An extension of the time period specified in Rule 403 for the filing of this motion; and
3. Costs of this motion on a solicitor and own client basis.
[2] In particular, the Intervener is seeking costs for second counsel (Tariff B, Item 14(b)) at the appeal before me, and an order that the Intervener is entitled to travel fees and disbursements for one counsel to attend hearings and cross-examinations in Winnipeg (Tariff B, Item 24). In order to obtain these amounts, the Intervener must have an order of the Court so directing.
[3] My order in this matter was issued on February 25, 2002. The defendant filed a notice of appeal of my order on April 5, 2002. A notice of discontinuance in respect of the notice of appeal was filed on April 17, 2002.
[4] On June 12, 2002, the Intervener forwarded two bills of costs to the defendant; one bill of costs for the hearing before Prothonotary Hargrave and the other bill of costs for the appeal heard by me.
[5] On July 31, 2002, the defendant advised the Intervener that it objected to the two items which are the subject of this motion as no Court order had been granted.
[6] The Intervener indicated in August 2002 that if an agreement could not be reached on the bills of costs, it would make an application to the Court.
[7] The defendant opposes the application as it was not made within 30 days of the date of my order (Rule 403(1) of the Federal Court Rules, 1998 S.O.R./98-106). The Intervener has requested an extension of time to file the motion. The defendant also argues that if the extension of time is granted, the relief requested should not be granted.
[8] The issues as stated by the Intervener are:
1. Is the Intervener entitled to bring an application under Rule 403 despite the passage of more than 30 days since the date of the judgment?
2. Is the Intervener entitled to the costs of second counsel (Tariff B, Item 14(b))?
3. Is the Intervener entitled to travel fees and disbursements (Tariff B, Item 24)?
[9] Issue 1
Is the Intervener entitled to bring an application under Rule 403 despite the passage of more than 30 days since the date of the judgment?
I am prepared to grant an extension of time pursuant to Rule 8 of the Federal Court Rules, 1998. The Federal Court of Appeal in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (QL) (C.A.) stated that the proper test for an extension of time was whether the applicant has demonstrated:
1. A continuing intention to pursue his or her application;
2. That the application has some merit;
3. That no prejudice to the respondent arises from the delay; and
4. That a reasonable explanation for the delay exists.
[10] I am satisfied from the motion material that the Intervener had an intention to pursue its application. The Intervener indicated that it would make a motion to the Court if an agreement could not be reached. I am also satisfied that the application has some merit. The respondent has not indicated that it would be prejudiced as a result of the delay. Finally, there is no doubt that the motion ought to have been made within 30 days after the date of the order, unless an extension of time is granted. However, the surrounding circumstances should be considered. There was an appeal on the record until April 17, 2002. It should be noted that the existence of an appeal alone, does not relieve the applicant from the 30 day time limit. There was, however, ongoing attempts by the Intervener to settle this matter without the need for a motion to the Court. These facts, taken together, satisfy the fourth factor that a reasonable explanation for the delay existed.
[11] Issue 2
Is the Intervener entitled to the costs of second counsel (Tariff B, Item 14(b))?
I am not persuaded by the motion material that the Intervener is entitled to the costs of a second counsel at the appeal hearing. Much of the material would have already been marshalled for the hearing before Prothonotary Hargrave.
[12] Issue 3
Is the Intervener entitled to travel fees and disbursements (Tariff B, Item 24)?
I am satisfied on the facts relating to this issue that the Intervener is entitled to the travel by counsel (travel fees and disbursements) for the appeal. In this case, the Intervener's property and records for its hotels are in Alberta. The employees of the Intervener, who have knowledge of the leases, live in Alberta. The law firm of the counsel of the Intervener represents it in all matters relating to its hotels and in particular, lease negotiations with the Crown. The Intervener's counsel also has specific knowledge of the Intervener's hotels. This information was provided in the Intervener's memorandum of fact and law and reply to the respondent's motion record. The costs with respect to the hearing before the Prothonotary were dealt with by the Prothonotary's order.
[13] The motion is granted to the extent that the Intervener shall have its travel by counsel (travel fees and disbursements) as provided for by Tariff B, Item 24.
[14] The applicant's motion with respect to second counsel fees is dismissed.
[15] As success is divided, there shall be no order as to costs on this motion.
ORDER
[16] IT IS ORDERED that:
1. The extension of time for the Intervener to file its request for directions pursuant to Rule 403(1) of the Federal Court Rules, 1998, supra is granted.
2. The Intervener's motion for counsel fees for second counsel (Tariff B, Item 14) is denied.
3. The Intervener's motion for travel by counsel (travel fees and disbursements) for the appeal as provided for by Tariff B, Item 24 is granted.
4. There shall be no order as to costs on this motion.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 15, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1168-96
STYLE OF CAUSE: Allsion G. Abbot and others v. Her Majesty the Queen
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
DATED: Thursday, May 15, 2003
WRITTEN REPRESENTATIONS BY:
Thompson Dorfman Sweatman
FOR PLAINTIFF
Paul D. Edwards/Jurgen W. Feldschmid
FOR DEFENDANT
Judson E. Virtue
FOR INTERVENER
SOLICITORS OF RECORD:
Thompson Dorfman Sweatman
2200 - 201 Portage Avenue
Winnipeg, Manitoba
R3B 3L3
FOR PLAINTIFFS
Duboff Edwards Haight & Schachter
1900 - 155 Carlton Street
Winnipeg, Manitoba
R3C 3H8
FOR DEFENDANT
MacLeod Dixon LLP
3700 - 400 Third Avenue S.W.
Calgary, Alberta
T2P 4H2
FOR INTERVENER