Bannon v. The Corporation of the City of Thunder Bay [Indexed as: Bannon v. Thunder Bay (City)]

64 O.R. (3d) 524

[2003] O.J. No. 1153

Docket No. C38824

Court of Appeal for Ontario,

McMurtry C.J.O., Doherty and Gillese JJ.A.

April 7, 2003

Civil procedure -- Costs -- Jurisdiction -- Trial judge not having authority to order that costs of appellate proceedings be assessed on particular basis -- Section 47 of Supreme Court of Canada Act giving Supreme Court of Canada express authority to award costs of appellate proceedings -- Trial judge not entitled to treat appellate proceedings as incidental to trial -- Supreme Court Act, R.S.C. 1985, c. S-26, s. 47.

After the Supreme Court of Canada allowed an appeal from a judgment of the Ontario Court of Appeal, with costs, and restored the judgment of the trial judge, the trial judge ordered that the costs of the appellate proceedings be assessed on a "risk plus premium" basis. The appellant appealed.

Held, the appeal should be allowed.

The trial judge did not have the authority to order that the costs of the appellate proceedings be assessed on a particular basis. Section 47 of the Supreme Court Act gives the Supreme Court express authority to order the payment of the costs of the court appealed from and of the appeal. The breadth of jurisdiction of the trial judge pursuant to rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 did not extend to treating appellate proceedings as incidental to the trial.

APPEAL from a judgment of Kozak J. (2002), 2002 49516 (ON SC), 61 O.R. (3d) 358 (S.C.J.) with respect to costs.

Statutes referred to Supreme Court Act, R.S.C. 1985, c. S-26, s. 47 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 57.01

Stephen J. Wojciechowski, for appellant. Dan Newton, for respondent.

Endorsement

[1] Endorsement BY THE COURT: -- Section 47 of the Supreme Court Act, R.S.C. 1985, c. S-26, as amended, gives the Supreme Court of Canada express authority to "order the payment of the costs of the court appealed from . . . and of the appeal". The Supreme Court of Canada made such an order in its judgment of February 21, 2002, in the following words:

Consequently, we would allow the appeal with costs throughout, set aside the judgment of the Ontario Court of Appeal, and restore the judgment of Kozak J. at trial.

[2] Kozak J. did not have the authority to order that the costs of the appellate proceedings be assessed on a "risk plus premium" [page525] basis. We reject the submission that the breadth of jurisdiction of the trial judge pursuant to rule 57.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] is such that it can extend to treat appellate proceedings as incidental to the trial. Moreover, having given the power to award costs of appellate proceedings to the Supreme Court of Canada, there is no gap that would justify giving the trial judge some type of residual discretion to order such a premium.

[3] The basis upon which costs were to be awarded in the appellate proceedings was a matter to be argued before the Supreme Court of Canada. Even if Kozak J. had had the authority to make the order that he did -- which he did not -- the matter of costs having already been decided by the Supreme Court of Canada, he could not adjudicate upon it again.

[4] The respondent is not precluded from advancing an argument in favour of such a premium in the appropriate forum(s). The costs of the proceedings in this court have yet to be assessed. Should counsel for the respondent choose to pursue a claim for such a premium in the proceedings taken before this court, it would be appropriate that the matter be dealt with by a panel of this court rather than by an assessment officer.

[5] Accordingly, the appeal is granted and para. 1 of the order of Kozak J. is set aside. In all of the circumstances, there shall be no order as to costs of the appeal or the motion to quash.

Appeal allowed.