TUESDAY, OCTOBER 27, 1998
(UPON RECONVENING AT 11:40 A.M.)
THE COURT: The Court is ready to give a decision in today's proceedings. This is an application on behalf of the Plaintiff, Ken Stephan William Fegol, for the finding of an order of contempt against the Defendant's representative, the Honourable Minister of National Revenue, Herb Dhaliwall, the Deputy Attorney General, Mr. Morris Rosenberg and their counsel, Mr. Duncan A. Fraser and Mr. Robert Gosman, for disobeying the order of the Honourable Mr. Justice Campbell, pronounced in his judgment delivered on March 31st, 1998; that is to say, to award, quote "Award Mr. Fegol costs of this action in Tariff B, Column 5."
The Plaintiff had sued the Defendants and was successful on the suit, in that Mr. Justice Campbell awarded him the sum of eight thousand and fourteen dollars and three cents, which Mr. Justice Campbell ordered to be paid forthwith. Forthwith apparently dragged for a while, but ultimately the sum of eight thousand and fourteen dollars and three cents was paid to Mr. Fegol.
Mr. Justice Campbell went on to award costs of the action, Tariff B, Column 5. Mr. Justice Campbell's award was a raw award, if one will, awarding costs. The costs had not then been assessed. Mr. Fegol first sought an order of this court to hold the four public officers in contempt in regard to his substantive award, but the cheque was paid in time. Forthwith seemed to be stretched a bit there.
Finally, Mr. Fegol got around to assessing or having his bill assessed, presumably under Tariff B, Column 5. It was assessed by an assessment officer of this court, Mr. Charles E. Stinson. Mr. Stinson performed the assessment and gave his certificate of assessment on October 19th, 1998. So it was with vertiginous alacrity, if not to say negligence, that Mr. Fegol brought the motion under discussion today. Indeed, the very next day.
The motion is premature, as acknowledged by the Applicant, in these proceedings he is the applicant, this morning in court. The terms of Rule 474 (1) and (2) point to this motion's prematurity. The Applicant filed and served this motion to have the four public officers charged with contempt of court on October 20th, 1998. On October 22nd, 1998, the Applicant then filed a motion under Rule 414, for review of Mr. Stinson's assessment of the costs awarded to the Applicant in his role of Plaintiff in the action against the Queen and the Minister of National Revenue.
The Applicant presented a bill for forty-seven thousand, seven hundred and fourteen dollars and twenty-nine cents, and his costs were assessed and allowed at four thousand and four dollars, forty-eight cents, which assessment is scheduled to be reviewed at the instance of Mr. Fegol on November 3rd, 1998.
Since the assessment of the Applicant's costs of his action will remain uncertain until review, it goes without saying, that as yet, he cannot have caused the administrator to have issued a Certificate of Judgment under Rule 474 (1), nor to have transmitted it to the Deputy Attorney General of Canada under Rule 474 (2). This is why this motion to issue process for contempt of court is premature.
The Applicant said he thought of this and sought an adjournment only this morning. There appears to be no valid reason for his not having thought of this last week, on October 22nd, 1998, when he moved for a review of Mr. Stinson's assessment of the Applicant's costs.
The Defendant's counsel asks that the motion for contempt of court being premature, ought to be dismissed because for one reason, Rule 414 gives ten days for the review application of an assessment of costs and that period of time will end in the future, two days hence on October 29th, 1998. The Defendant's counsel also points to Rule 400 sub rule (3) (k), and that rule is formulated in this way. Rule 400, sub rule (3) begins:
| "In exercising its discretion under subsection (1), [which gives full discretionary power over the amount and allocation of costs], the court may consider (k), whether any step in the proceeding was (i), improper, vexatious or unnecessary or (ii), taken through negligence, mistake or excessive caution." |
Counsel for the Defendant emphasizes subparagraph (i), that this step in the proceeding, an application to have the four public officers charged with contempt, was improper, vexatious or unnecessary and as a leit motif, possibly taken through negligence. But counsel for the Defendants did not urge that it was made or taken through mistake or excessive caution.
It appears to the court that, having been importuned by a premature motion to have four public officers charged with contempt of court, the proceedings are indeed, improper, vexatious or unnecessary, and the Applicant, in justice, ought not to be permitted simply to say "Ah well, I thought about this this morning, and I want an adjournment". Because the applicant by his motion, has put the Defendant, the Respondent, to the trouble of instructing counsel, researching and filing a motion record and attending in court. Counsel indicated that which is patently obvious, that he had other things to do of course, but one of the things he had to do was to appear here this morning. So that the Applicant or Plaintiff Mr. Fegol, has caused the Respondents or Defendants some cost, expense and trouble with his premature motion which he thought of asking having adjourned only this morning, instead of on the day when he decided that he was going to seek a review of Mr. Stinson's assessment of his costs.
Now, the Respondents asked for costs and they asked for costs to be paid forthwith, under Rule 401 sub rules (1) and (2). One, the court may award costs of a motion in an amount fixed by the court. Two, where the court is satisfied that a motion should not have been brought or opposed, the court shall order that the costs of the motion be payable forthwith.
The court of course, is satisfied that this motion ought to have been opposed, but is not satisfied that this motion ought to have been brought on for hearing, if only to be the subject of an application to adjourn it as soon as the proceedings started. All were here. All parties were here and the Applicant here in person, the Defendant by counsel.
And so how Mr. Fegol asks, can he be made to pay forthwith, since he says he is impecunious. Well, that is not beyond the ingenuity of the court. At the moment, Mr. Fegol has costs assessed at four thousand and four dollars and forty-eight cents. Uncertain because they may be either increased or decreased on a review of Mr. Stinson's assessment. For these proceedings this morning, the court is going to invoke its power under Rule 401 sub rule (1), and the court is going to award costs to the Defendants or the Respondents, in an amount of eight hundred dollars including disbursements for this morning's proceedings.
How will those costs be satisfied by Mr. Fegol forthwith? Well, they will be counter poised against the sum which was assessed by Mr. Stinson, leaving a balance as of this moment, of three thousand, two hundred and four dollars and forty-eight cents. That sum is still uncertain, because those costs are still to be reviewed on November 3rd next. Whatever will be the outcome of that will be the difference between the outcome of the review and the eight hundred dollars which has been awarded to Defendants this morning. And the forthwith is as quick as an arithmetic subtraction. It's lighting speed forthwith in this instance.
Are there any questions? No questions, Mr. Gosman? Mr. Fegol.
MR. FEGOL: My lord, we have two other counsel in the room. They weren't needed. Both motions were filed to be heard at the same time, so this wasn't -- they didn't have to come separately for the contempt. Because the other motion was for the same date.
THE COURT: Yes, it was. That's not in question.
MR. FEGOL: No. But they didn't have to appear here separately for this motion.
THE COURT: Well, they had to appear on your motion. You see, they wouldn't have had to appear had you phoned Mr. Gosman's office and said, if you consent, I want to adjourn my motion for contempt. It's premature. And if he had said okay, then that will save me attending at court. You could have done that.
MR. FEGOL: No. But your worship --
THE COURT: I asked you for questions, not an appeal, Mr. Fegol. This isn't an appeal of my order. Questions, any questions.
MR. FEGOL: But it was only the registrar that postponed it to the 3rd. My motion was for today.
THE COURT: No, it wasn't the registrar who postponed it to the 3rd. It was this judge that postponed it to the 3rd, because the judge wasn't convinced that you could do your review of Mr. Stinson's assessment in under two hours. Not convinced, still not convinced.
MR. FEGOL: Then I still got word that it was to be heard today.
THE COURT: No, it's adjourned.
MR. FEGOL: Yes, but I had directive that it was --
THE COURT: But you were here on your motion for contempt.
MR. FEGOL: Yes, but that was only part of the appearance on their part, you see.
THE COURT: Mr. Fegol, I'm not going to argue with you.
MR. FEGOL: No. I -- I --
THE COURT: I'm not going to receive your appeal from my order because there's another tribunal which can take care of that, if you wish to make an appeal. I simply, out of courtesy, asked you if you have any questions. If you have some questions, I'll listen to them. If you have no questions, court will rise.
MR. FEGOL: No. The question was that when I filed the motion, there were two motions for this date. So there was no extra effort on their part to appear.
THE COURT: Well, tell that to an appeal tribunal.
MR. FEGOL: I'm not appeal -- I'm just saying that, and I thank you.
THE COURT: Thank you, Mr. Fegol. Court will rise.
(Adjourned at 11:55 a.m.)