Court File and Parties
COURT FILE NO.: CV-12-55602
DATE: 2022/07/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Serge Brousseau
Plaintiff
– and –
La Cité Collégiale et Le Régime Des Collèges D’Arts Appliqués et De Technologies
Defendants
Sean McGee and Anna Lichty, counsel for the Plaintiff
André Champagne and Sophie Gagnier, counsel for the Defendant, La Cité Collégiale
HEARD: In writing
Decision on Functus Officio
R. Smith J.
Overview
[1]. On March 15, 2022, the Plaintiff, Serge Brousseau sought leave to make further submissions on whether he was required to pay HST of 13% on the amount of the legal costs awarded to La Cité Collégiale (“La Cité) or did he only have to pay the amount of HST that La Cité will have to pay after receiving credits allowed under the Excise Tax Act, R.S.C., 1985, c. E-15.
[2]. I released my decision on costs on November 17, 2021, including the words “plus TVH”. I intended that the standard amount of HST of 13% would be paid on the amount of the costs awarded. Neither party made any submissions on the provisions of the Excise Tax Act on whether La Cité was entitled to receive any HST credits.
[3]. I allowed the parties to make submissions on whether I was functus officio.
Issue #1 – Am I functus officio at this time?
[4]. Mr. Brousseau submits that I am not functus officio (“functus”) because the order has not yet been entered. He further submits that the words “plus HST” could mean plus “the HST that La Cité is required to pay and not the 13% rate”. He submits that determining the net amount of HST that La Cité will pay is not a new issue.
[5]. La Cité submits that the Plaintiff seeks to raise a new issue not addressed in his submissions on costs. A decision on costs was released on November 17, 2021. La Cité submits that when a court that has made a final decision, it cannot change the decision except to correct a clerical error or an accidental omission. The doctrine of functus officio allows the parties to rely on the finality of a court’s decision.
Analysis
[6]. In my decision on costs dated November 17, 2021, I ordered the Plaintiff to pay costs to La Cité of $425,000 “plus HST” plus disbursements of $37,804.80 inclusive of HST. My understanding and intention was that an additional amount of HST would be paid calculated at the normal rate of 13% of the costs ordered of $425,000.00.
[7]. The Plaintiff did not make any submissions that the amount of HST should be different than 13%. The Plaintiff now submits that further evidence be introduced to determine if La Cité, as a community college, would be entitled to receive some credit towards the HST that it would pay on an invoice for legal services.
[8]. Determining what if any credits La Cité may be entitled to claim for HST paid on invoices for legal services introduces a new issue that does not result from a clerical error or an accidental omission. In the decision of Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, the Supreme Court of Canada outlined the doctrine of functus officio and limited amendments to final decisions to the correction of clerical errors or errors resulting from a forgotten or accidental omission.
[9]. In the Brown v. The Municipal Property Assessment Corp., 2014 ONSC 7137, the Divisional Court held that “because the order was not signed and entered, does not permit a judge to vary that order in whatever manner s/he happens to consider to be appropriate at a later date. The principle of finality, that underlines the functus officio principle, weighs against the scope of authority and that type of attention.”
[10]. I agree with and must follow the Brown decision. The entering of an order is purely an administrative matter and once a court has heard submissions from both parties and rendered a decision, it has completed its function. It has no ability to further deal with the matter.
[11]. In this case, La Cité sought a costs award of over $900,000 based on the time spent and based on exceeding an offer to settle. The Plaintiff argued to limit the costs ordered to a range of $225,000.
[12]. When the decision was made to order costs of $425,000 plus HST, I understood that the Plaintiff would be paying an additional amount of $55,250 for HST (13% x $425,000). If La Cité was not required to pay HST, this would have been a factor that affected the amount ordered for costs because the overriding factor was the amount that the unsuccessful party would reasonably expect to pay (Boucher).
[13]. If new evidence was introduced that La Cité would not have to pay HST on invoices for legal services, then this would require a reconsideration of the amount of the costs awarded. The principle of functus officio prevents me from changing my decision on costs.
Disposition
[14]. For the above reasons, the principle of functus officio prevents me from changing my decision on costs. I approve the draft judgment attached as Schedule A to La Cité’s submissions and will sign it if sent to my attention in PDF format. No costs are ordered for these additional submissions.
Mr. Justice Robert Smith
Released: July 29, 2022
COURT FILE NO.: CV-12-55602
DATE: 2022/07/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Serge Brousseau
Plaintiff
– and –
La Cité Collégiale et Le Régime Des Collèges D’Arts Appliqués et De Technologies
Defendants
DECISION ON FUNCTUS OFFICIO
R. Smith J.
Released: July 29, 2022