Date: 20020830
Docket: A-527-99
Ottawa, Ontario, August 30, 2002
Present: Richard C.J.
Evans J.A.
Sharlow J.A.
BETWEEN:
DUPONT CANADA INC.
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
ORDER
The motion is dismissed.
"J. Richard"
C.J.
Date: 20020830
Docket: A-527-99
Neutral citation: 2002 FCA 307
Present: Richard C.J.
Evans J.A.
Sharlow J.A.
BETWEEN:
DUPONT CANADA INC.
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, August 30, 2002
REASONS FOR ORDER BY: SHARLOW J.A.
CONCURRED IN BY: RICHARD C.J.
EVANS J.A.
Date: 20020830
Docket: A-527-99
Neutral citation: 2002 FCA 307
Evans J.A.
Sharlow J.A.
BETWEEN:
DUPONT CANADA INC.
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
On June 3, 1999, the Tax Court of Canada dismissed with costs the appeal of Dupont Canada Inc. from an income tax assessment relating to the 1988 taxation year. Dupont then appealed to this Court, which rendered the following judgment on April 12, 2001:
The appeal is allowed with costs, the judgment of the Tax Court is set aside, and the reassessments under appeal are referred back for reassessment in accordance with the reasons of the Court.
On June 17, 2002, Dupont served and filed a notice of motion for an order amending the April 12, 2001 order to include costs in the Tax Court. The Crown has filed no response to the notice of motion, and the time for doing so has expired.
Can the Federal Court of Appeal award costs in the Tax Court?
In an appeal from a Tax Court judgment, the Federal Court of Appeal may make any order the Tax Court could have made (subparagraph 52(c)(i) of the Federal Court Act, R.S.C. 1985, c. F-7). That would include, if the Tax Court judgment is reversed, an order for costs in relation to the Tax Court proceedings.
Practice of the Federal Court of Appeal relating to Tax Court costs
Among the reported cases are many examples in which an appeal from the Tax Court has been allowed with costs in this Court and in the Tax Court. However, there are also many examples in which an appeal is simply "allowed" or "allowed with costs", the judgment being silent on the question of costs in the Tax Court.
Typically, the form of order as to costs will simply grant the relief sought in the memorandum of fact and law of the successful party, unless there is some reason to make a different order. That is because the Court normally presumes that parties to an appeal, particularly parties represented by counsel, understand their entitlement to costs if successful. A party who seeks less than its full entitlement may have some good reason for doing so. There may, for example, be an agreement between the parties relating to costs.
Dupont's notice of appeal against the decision of theTax Court states that Tax Court costs would be sought. I have no doubt that if Dupont's memorandum of fact and law had asked for "costs in this Court and in the Tax Court", that request would have been granted once the appeal was determined to be well founded. However, the relief actually sought in Dupont's memorandum of fact and law did not specify Tax Court costs, but simply asked for "costs". There is no evidence that Tax Court costs were sought at the hearing.
Interpreting an order allowing an appeal from the Tax Court "with costs"
It could be argued that an order of this Court allowing an appeal from the Tax Court "with costs" should be interpreted as implicitly including Tax Court costs. Counsel for Dupont referred me to Barnabe Estate v. Canada, [2001] 1 C.T.C. 2001, 2000 D.T.C. 2600 (T.C.C.), in which a Tax Court Judge indicated that he might have adopted that interpretation if there was evidence that Tax Court costs had been sought in the memorandum of fact and law filed in the Federal Court of Appeal. I express no opinion as to the correctness of that decision, because it cannot assist Dupont. In this case, Dupont did not request Tax Court costs until it filed the motion now under consideration.
Jurisdiction to amend orders
The notice of motion does not specify the legal basis for the amendment sought. The Federal Court Rules, 1998, SOR/98-106, contain the following provisions relating to the amendment of orders:
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397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that |
397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes : |
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(a) the order does not accord with any reasons given for it; or |
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier; |
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(b) a matter that should have been dealt with has been overlooked or accidentally omitted. |
b) une question qui aurait dû être traitée a été oubliée ou omise involontairement. |
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(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court. |
(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour. |
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... |
... |
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399. (1) On motion, the Court may set aside or vary an order that was made
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399. (1) La Cour peut, sur requête, annuler ou modifier l'une des ordonnances suivantes, si la partie contre laquelle elle a été rendue présente une preuve prima facie démontrant pourquoi elle n'aurait pas dû être rendue : |
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(a) ex parte; or |
a) toute ordonnance rendue sur requête ex parte;
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(b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding, |
b) toute ordonnance rendue en l'absence d'une partie qui n'a pas comparu par suite d'un événement fortuit ou d'une erreur ou à cause d'un avis insuffisant de l'instance. |
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if the party against whom the order is made discloses a prima facie case why the order should not have been made. |
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(2) On motion, the Court may set aside or vary an order |
(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants : |
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(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or |
a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue; |
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(b) where the order was obtained by fraud. |
b) l'ordonnance a été obtenue par fraude. |
Clearly, this situation is not governed by Rule 399. Nor is this a case where there has been a clerical mistake, error or omission within the scope of Rule 397(2). Therefore, the motion in this case can be based only on Rule 397(1).
I will put aside for a moment the fact that the time limit for invoking Rule 397(1) has long since expired, and that no extension of time has been sought. In order to justify an amendment under Rule 397(1), I would have to be satisfied that the matter of Tax Court costs should have been dealt with but was overlooked or accidentally omitted. In this regard, I agree with Mr. Justice Rouleau when he suggested, in Canadian National Railway Co. v. Norsk Pacific Steamship Co. (T.D.), [1993] 1 F.C. 67 at paragraph 19, that Rule 397(1) permits the correction of certain mistakes made by the Court but is not intended to relieve against a mistake by counsel in failing to bring a matter to the Court's attention.
It seems to me that the April 12, 2001 order granted precisely the relief sought by Dupont as the successful party. Tax Court costs were not granted in this case because they were not asked for. It follows that Rule 397(1) cannot justify amending the order as requested, and that this motion should be dismissed.
"K. Sharlow"
J.A.
"I agree
J. Richard C.J."
"I agree
John M. Evans" J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-527-99
STYLE OF CAUSE: DUPONT CANADA INC. and HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: The Honourable Justice Sharlow
DATED: August 30, 2002
WRITTEN REPRESENTATIONS BY:
Alan M. Schwartz, Q.C. FOR THE APPELLANT
Catherine Rosebrugh
No written representations by the Respondent
SOLICITORS OF RECORD:
FASKEN MARTINEAU DUMOULIN LLP FOR THE APPELLANT
BARRISTERS & SOLICITORS
TORONTO, ONTARIO
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OTTAWA, ONTARIO