T-3908-71
Marjorie Hexter Stein, for herself and as the
widow of Charles Simmon Stein, deceased, and as
a co-executor of the estate of the said deceased,
and Maurice Schwarz and William I. Stein, co-
executors of the said estate (Plaintiffs)
v.
The Ships Kathy K (also known as Storm Point)
and S. N. No. 1, Egmont Towing and Sorting Ltd.,
Shields Navigation Ltd. and Leonard David Hels-
ing (Defendants)
Trial Division, Collier J.—Vancouver, December
10 and 19, 1975.
Maritime law—Shipping accident—Plaintiffs seeking order
re costs—Whether Court functus—Federal Court Rules
337(2)(6),(5), 334(1),(4),(7)—Contributory Negligence Act,
R.S.B.C. 1960, c. 74, ss. 2, 4.
As a result of a collision between the Kathy K, towing the S.
N. No. 1 and a sailboat manned by deceased and his son,
liability was apportioned by the Trial Judge 75% to the tug and
25% to the sailboat. The Court of Appeal found the negligence
of deceased and his son solely to blame, but, on appeal, the
Supreme Court of Canada applied the Contributory Negligence
Act (B.C.) and held that liability should follow proportionate
fault. Plaintiffs seek an order in respect of costs (a) for a
declaration that all steps be classified as Class III, (b) to
recover 75% of their costs to January 31, 1972, and 100%
thereafter, or (c) 100%. Defendants claim that the Court is
functus.
Held, granting the motion, the Court is not functus. The
parties and the Court proceeded on the basis that applications
by plaintiffs regarding costs were still outstanding and no new
motions or applications had to be launched within any time
limit. All parties either forgot that cost problems remained
unresolved, or set them aside. Plaintiffs are not launching
something new but are bringing on substantially the same
issues left outstanding, and will recover their full costs. How
ever, as the Trial Judge found that one of the persons on whose
behalf the action is brought (the son, who was acting as
skipper) was partly at fault, this is not a proper case for
applying the Thomson decision, dealing with section 4 of the
Contributory Negligence Act (B.C.). Defendants are entitled to
some consideration; some fault must be attributed to the son.
As no apportionment of damages has been made, defendants
shall receive 8% of their costs.
Thomson v. B.C. Toll Highways & Bridges Authority
(1965) 49 D.L.R. (2d) 383, discussed.
MOTION.
COUNSEL:
J. R. Cunningham for plaintiffs.
D. B. Smith for defendants.
SOLICITORS:
McCrae, Montgomery, Hill and Cunning-
ham, Vancouver, for plaintiffs.
Bull, Housser & Tupper, Vancouver, for
defendants.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiffs seek an order in
respect of costs as follows:
(1) For a direction (pursuant to Rule 346(1)
and sections 1 of Tariff B and Tariff A) that all
steps in this action be classified as Class III
rather than Class II.
(2) That the plaintiffs recover from the defend
ants 75 per cent of the costs of this action up to
January 31, 1972, and 100 per cent of their
costs thereafter.
(3) Alternatively, that the plaintiffs recover
from the defendants 100 per cent of their costs
of the action.'
Counsel for the defendants takes the position the
plaintiffs are out of time, or have taken far too
long to bring on this application; that the Court is
therefore now functus to make any special order as
to costs. As I understand the position of counsel
for the defendants, the Court, in those circum
stances, should either make no order at all as to
costs, or in its discretion, direct the plaintiffs
recover 75 per cent of their costs and the defend
ants recover 25 per cent of their costs. The latter
direction would be in accordance with the appor
tionment of fault found by the Trial Judge, and
ultimately confirmed by the Supreme Court of
Canada.
' This alternative order was requested when this motion came
on for hearing. If it is technically necessary, leave is given to
amend the notice of motion accordingly.
As to raising the action from Class II to Class
III, the defendants take the position that, in any
event, no proper grounds have been shown.
I shall deal first with the contention the Court is
now functus to make any special orders or direc
tions. It is necessary to set out, at some length I
am afraid, the history of these proceedings.
The action is brought for damages arising out of
the death of Charles Simmon Stein who was killed
in a marine accident which occurred in Vancouver
harbor on June 27, 1970. The deceased was acting
as crew on a sailboat with his son Ross Simmon
Stein (born September 28, 1953) acting as skipper.
Technically the plaintiffs in the action are the
widow suing in her personal capacity and two
other executors of the estate of the deceased. 2 The
action is brought pursuant to Part 18 of the
Canada Shipping Act 3 for damages on behalf of
the widow and three children of the deceased, one
of whom is Ross Simmon Stein.
On January 31, 1972 the solicitors for the plain
tiffs sent the following letter to the solicitors for
the defendants:
The examinations for discovery of the master of the KATHY K
and the sole survivor from the sailboat having been completed,
the circumstances of the collision would appear to be available
to all parties to the action. Pursuant to instructions from our
client we hereby, on their behalf, make a firm offer to settle the
question of liability for the collision in this case on the basis of
the defendants being 75% at fault, with any question as to the
quantum of damages to be referred to the Registrar for assess
ment, if it cannot be agreed. This offer is made in order that
the costs of the trial on the issue of liability may be avoided.
In the event this •offer is rejected and the Court fixes your
clients with 75% or more of the blame for the collision we will,
of course, ask the Court to order that at least all taxable costs
incurred hereafter be paid by your clients.
That offer was not accepted by the defendants. As
it eventually turned out, the fault assessed by the
court against the defendants was, as I have already
noted, 75 per cent.
2 The widow sues as well in her capacity as a co-executor.
R.S.C. 1952, c. 29 and amendments.
By agreement of the parties the trial of the
action was heard in two stages. The issue as to
liability was heard first over a period of seven days
in April 1972. Reasons for judgment were given by
Heald J. on May 2, 1972. 4 He apportioned fault
for the accident resulting in the fatality as follows:
25 per cent against the sailboat and 75 per cent
against the Kathy K. In his reasons the judge said
this [at page 6071:
(d) Costs—The costs of both the action and the counter
claim will be apportioned on the same basis as liability has been
apportioned in accordance with (a) hereof.
Pursuant to Rule 337(2)(b), counsel for the plaintiffs may
prepare a draft of an appropriate judgment to implement the
Court's conclusions and move for judgment accordingly.
On May 25, 1972, a notice of appeal was filed
on behalf of the defendants. The Registry took the
view, as no formal pronouncement had yet been
'issued, the notice of appeal was premature.'
On June 5, 1972, the solicitors for the plaintiffs
filed a motion seeking judgment in accordance
with a draft which was attached to the motion, and
further:
For an Order that the Court direct the payment of a fixed or
lump sum to the Plaintiffs by the Defendants in lieu of taxed
costs in such net amount (after set-off) as this Honourable
Court may decide; alternatively for an Order increasing the
amounts allowed by Tariff B of the Federal Court Rules to
such extent as this Honourable Court may determine.
The proposed judgment contained this clause:
The Plaintiffs pay one-quarter of the Defendants' party and
party costs of the Plaintiffs' action up to January 31, 1972, the
Defendants pay three-quarters of the Plaintiffs' party and party
costs of the Plaintiffs' action up to January 31, 1972, and the
Defendants pay all the Plaintiffs' party and party costs of the
Plaintiffs' action after January 31, 1972.
The date of January 31, 1972 referred to in the
above-quoted paragraph obviously comes from the
plaintiffs' letter of that date offering to settle the
liability issue on the basis of the defendants being
held to be 75 per cent at fault.
[1972] F.C. 585.
5 A new notice of appeal was substituted at a later date. I
shall later refer to it chronologically in the main body of these
reasons.
The next material document I have been able to
discover on the file 6 is a document headed "Judg-
ment on Motion" which, under the notation
"Approved as to form", is signed by the solicitor
for the plaintiffs and the solicitor for the
defendants.
On June 29, 1972, a formal pronouncement was
signed by Heald J. That judgment is identical to
the one which both solicitors had approved as to
form. The relevant parts are paragraphs 4 and 5
which I set out.
The counterclaim of Egmont Towing & Sorting Ltd. and
Shields Navigation Ltd. for limitation of their liability under
the Canada Shipping Act be dismissed with costs to the
Plaintiffs.
Either party shall have the right to bring on an application to
speak to costs.
Next, a notice of appeal dated July 24, 1972 was
substituted for the earlier notice of appeal referred
to above.
The issue as to quantum of damages was then
heard from September 5th to September 9th, 1972
by Heald J. Reasons for judgment were given on
October 24, 1972.' In those reasons the following
appears:
The plaintiffs are entitled to their costs in respect of the
hearing on the assessment of damages.
Pursuant to Rule 337(2)(b), counsel for the plaintiffs may
prepare a draft of an appropriate judgment to implement the
Court's conclusions and move for judgment accordingly.
A motion, dated October 30 (six days later),
was filed on behalf of the plaintiffs seeking, in
part, an order as follows:
For an Order that the Court direct the payment of a fixed or
lump sum to the Plaintiffs by the Defendants in lieu of taxed
costs with respect to the assessment of damages herein in such
amount as this Honourable Court may decide; alternatively for
an Order increasing the amounts allowed by Tariff B of the
Federal Court Rules to such extent as this Honourable Court
may determine.
6 There do not appear to have been any oral or written
representations made, as to the contents of the pronouncement,
to the Trial Judge.
Not reported, T-3908-71.
On November 29, 1972, Heald J. issued another
pronouncement, this time in respect of the damage
award. Paragraphs 3 and 4 are as follows:
The plaintiffs are entitled to their costs from the defendants
in respect of the hearing on the assessment of damages.
The plaintiffs shall have the right to continue with their
application in respect of such costs as set out in clause 2 of their
notice of motion dated October 30, 1972.
A notice of appeal in respect of the decision on
damages had already been filed on November 23,
1972.
The appeals to the Federal Court of Appeal as
to liability and quantum were heard in May of
1974. Judgment was pronounced on May 17. 8 The
appeal and cross-appeal in respect of quantum
were dismissed. There was no order as to costs. On
liability, the Appeal Division allowed the appeal
and set aside the judgment of the Trial Division.
The pronouncement continues: "... The action is
dismissed with costs."
An appeal was then taken on behalf of the
plaintiffs to the Supreme Court of Canada. That
appeal was heard in June 1975 and judgment
pronounced on October 7, 1975. In respect of costs
the Supreme Court of Canada merely dealt with
costs in that Court and in the Federal Court of
Appeal.
In the reasons for judgment the Supreme Court
of Canada held, however, that the provisions of the
Contributory Negligence Act of British Columbia
"... apply to this collision and ... the liability to
make good the damage sustained by reason of the
death of Charles Stein should be in proportion to
the degree in which each vessel was at fault." This
point is relevant to (3) set out in the first para
graph of these reasons.
That concludes my summary of most of the
relevant facts. Some further details will be later
set out.
The defendants' argument is that the plaintiffs
ought to have applied for the directions and orders
now sought within 10 days of the pronouncement
dated June 29, 1972 and within 10 days of the
8 [1974] 1 F.C. 657.
pronouncement dated November 29, 1972, or cer
tainly within 10 days of the latter date; that so
much time now having elapsed the Court should
not entertain the present motion, or an application
to extend the 10 day period. Reliance is placed on
Rule 344(7) and Rule 337(5). The ten-day limita
tion is found in 337(5). I think it necessary to set
out more than section 5 of Rule 337.
Rule 337. (1) The Court may dispose of any matter that has
been the subject-matter of a hearing
(a) by delivering judgment from the bench before the hear
ing of the case has been concluded, or
(b) after having reserved judgment at the conclusion of the
hearing, by depositing the necessary document in the
Registry,
in the manner provided by paragraph (2).
(2) When the Court has reached a conclusion as to the
judgment to be pronounced, it shall, in addition to giving
reasons for judgment, if any,
(a) by a separate document signed by the presiding judge,
pronounce the judgment (Form 14), or
(b) at the end of the reasons therefor, if any, and otherwise
by a special declaration of its conclusion, which may be given
orally from the bench or by a document deposited in the
Registry, indicate that one of the parties (usually the success
ful party) may prepare a draft of an appropriate judgment to
implement the Court's conclusion and move for judgment
accordingly (which motion will usually be made under Rule
324).
(3) Upon the return of a motion under paragraph (2)(6), the
Court will settle the terms and pronounce the judgment, which
will be signed by the presiding judge. (Form 14)
(4) A judgment pronounced under paragraph (2)(a) or para
graph (3) will, subject to paragraphs (5) and (6), be in final
form.
(5) Within 10 days of the pronouncement of judgment under
paragraph (2)(a), or such further time as the Court may allow,
either before or after the expiration of that time, either party
may move the Court, as constituted at the time of the pro
nouncement, to reconsider the terms of the pronouncement, on
one or both of the following grounds, and no others:
(a) that the pronouncement does not accord with the rea
sons, if any, that may have been given therefor,
(b) that some matter that should have been dealt with has
been overlooked or accidentally omitted.
(Re simultaneous motion for directions re costs, see Rule
344(7).)
I set out as well sections 1 and 7 of Rule 344:
Rule 344. (1) The costs of and incidental to all proceedings
in the Court shall be in the discretion of the Court and shall
follow the event unless otherwise ordered. Without limiting the
foregoing, the Court may direct the payment of a fixed or lump
sum in lieu of taxed costs.
(7) Any party may
(a) after judgment has been pronounced, within the time
allowed by Rule 337(5) to move the Court to reconsider the
pronouncement, or
(b) after the Court has reached a conclusion as to the
judgment to be pronounced, at the time of the return of the
motion for judgment,
whether or not the judgment includes any order concerning
costs, move the Court to make any special direction concerning
costs contemplated by this Rule, including any direction con
templated by Tariff B, and to decide any question as to the
application of any of the provisions in Rule 346. An application
under this paragraph in the Court of Appeal shall be made
before the Chief Justice or a judge nominated by him but either
party may apply to a Court composed of at least 3 judges to
review a decision so obtained.
Having regard to the history earlier outlined, I
am unable to accede to the defendants' argument.
In this case a judgment had not been pro
nounced when the plaintiffs, on June 5, 1972,
moved for judgment as authorized by the Trial
Judge. (It seems obvious the Trial Judge had been
following the procedure set out in Rule 337(2)(b)).
The plaintiffs in the draft attached to their motion
sought the precise direction as to costs they now
seek as set out in (2) of the first paragraph of these
reasons. They also sought then an increase in the
amounts allowed by Tariff B. 9 That is more than
they now seek in (1) of the first paragraph of these
reasons.
The pronouncement of June 29, 1972 did not
include any disposition of the issue as to costs. The
Trial Judge merely adopted the draft clause sub
mitted "approved as to form" by counsel: "either
party shall have the right to bring on an applica-
9 The plaintiffs may have thought the wording of paragraph
3 of their notice of motion dated June 5, 1972 was wide enough
to include not only a request that the amount of the items set
out in Tariff B be increased but as well a request that the
rating be increased from Class II to Class III.
tion to speak to costs." As I see it, that
pronouncement:
(a) was not, on the matter of costs, "in final
form." Rule 337(4) provides: "A judgment pro
nounced under paragraph (2)(a) or paragraph 3
will ... be in final form." The judgment was in
final form in respect of other matters dealing
with the apportionment of fault, the reference as
to damages, the limitation of liability of the
defendant Helsing, interest, and the dismissal of
the counterclaim of the corporate defendants.
(b) did not, in words or by implication, intend
that any party, or the plaintiffs in particular,
should then launch, within the ten-day period
after the "final" judgment on all matters but
costs had been pronounced, an application pre
sumably identical to the cost portions of their
motion for judgment filed 24 days before.
The presiding judge was aware, as of June 29,
1972, that two days earlier, the Associate Chief
Justice had ordered that the issue as to damages
be heard on September 5. The matters of entitle
ment to costs and related points would probably
arise when the damage issue had been resolved. I
think it fair to infer the Trial Judge had that in
mind when he signed the June 29 pronouncement.
As well there was on the file at that time a notice
of appeal by the defendants, appealing the findings
on liability. '° It was apparent then the ultimate
outcome of the litigation, including matters of
costs, might not be resolved for some time.
After hearing the evidence on the quantum
issue, the presiding judge again, following Rule
337(2)(b) invited the successful parties (the plain-
io The Registry's view the notice of appeal was premature
could not, to my mind, bind anyone. If, on the appeal on the
liability issue, the plaintiffs were to lose (as they did) then any
decision made in the interim on costs would be academic. To
me, it seemed reasonable to defer any applications until that
appeal had been disposed of. I am aware that one can argue
that, on an appeal, all matters including judgments as to costs
should, in most cases, be before the appeal court.
tiffs) to prepare a draft judgment and move for
judgment. The plaintiffs complied. They included
in the motion (dated October 30, 1972) a request
that the Trial Judge reconsider a certain aspect of
the plaintiffs' damage claim, and a further request,
which I have previously set out, for a special
direction in respect of costs. The Trial Judge treat
ed the first part of the motion as an application
under Rule 337(5). In a "Judgment" dated
November 3, 1972 he stated he had not overlooked
the particular point and therefore made no change
in his monetary assessment. He concluded as fol
lows: "Having regard to the application under
Rule 344(7), this matter is reserved for further
consideration." Counsel for all parties had, when
the October 30 motion was filed, advised the Court
"With respect to the second application, the par
ties have agreed it can be put over until a later
date."
On November 10, 1972 the Assistant Adminis
trator of the Court wrote all counsel as follows:
I enclose a Certificate of an endorsement of the Honourable
Mr. Justice Heald relative to a Motion filed in the office of the
Registry on October 31, 1972.
In the last paragraph of his Order, Mr. Justice Heald
reserved the matter of fixed costs for further consideration. I
have been advised from the local office of this Registry at
Vancouver that, as requested by Mr. Justice Heald, the parties
are agreed that representations on that aspect of the Motion
will be dealt with under Rule 324 on the basis of Written
Submissions and without appearance of Counsel.
The pronouncement of November 29, 1972 was
then signed. It appears to be in the exact words of
a draft pronouncement submitted by counsel for
the plaintiffs.
At the date of that pronouncement a new notice
of appeal on the question of liability had already
been filed by the defendants (July 24) as well as a
notice of appeal on the issue of quantum (Novem-
ber 23).
The comments I earlier made in respect of the
pronouncement of June 29 apply, in my opinion,
equally to the pronouncement of November 29.
This second judgment was "final" as to a number
of matters, but not as to the costs of the damage
assessment proceedings. It did not require, express
ly or by implication, the launching of a motion,
within 10 days, identical or substantially the same
as those portions of the motion for judgment deal
ing with costs. The plaintiffs had been given "...
the right to continue with their application in
respect of such costs ...."
Looking at this whole history from a reasonable
and practical point of view I am convinced that the
parties, and certainly the Court, contemplated and
proceeded on the basis that the applications by the
plaintiffs in respect of costs of the liability and
damage issues were still outstanding, and no new
motions or applications had to be launched within
any time limit. I think it fair to conclude either
that all parties, in the process of preparing for and
presenting the subsequent appeals, forgot that the
cost problems were still outstanding and
unresolved, or tacitly set them to one side until the
appeals had been disposed of. The plaintiffs on
their present motion are, to my mind, not launch
ing something new. They are bringing on for deci
sion, substantially the same cost issues which the
parties and the Court had left outstanding.
I conclude, therefore, the Court is not functus.
If my assessment of the whole situation should be
wrong, and if the plaintiffs should technically have
launched this present motion within 10 days of
either or both pronouncements then I extend the
time (pursuant to Rule 337(5)) to and including
December 4, 1975. In my view this is an eminently
proper case to extend the time, if an extension is
necessary.
I now turn to the merits of the plaintiffs'
motion.
The first direction sought is that all steps in this
action be treated as Class III rather than Class II.
I am satisfied this is a meritorious case in which to
make that direction. This was a lengthy and com
plicated action. There was, as well, a counterclaim
for limitation of liability. The amounts involved
were very substantial. The trial appears to have
been a difficult one. It took twelve days in all. I
direct the costs be taxed on the basis of a Class III
action.
I go now to (2) and (3) as set out in the first
paragraph of these reasons.
As I understand him, counsel for the defendants
stated, that if the functus argument failed, then
the plaintiffs were probably entitled to an order in
the terms of (3): that they recover 100 per cent of
their costs, rather than on a 75-25 apportionment.
In this action the Supreme Court of Canada has
ruled that section 2 of the Contributory Negli
gence Act of British Columbia" applies. The
Court of Appeal for British Columbia in Thomson
v. B.C. Toll Highways and Bridges Authority 12
held, construing section 4 of the Contributory
Negligence Act, that the apportionment of fault
provisions of section 2 did not apply to apportion
costs on the same ratio (section 4) where one party
(in this case the plaintiffs) is without any "liability
to make good the damage." In the Thomson case
the plaintiff was a widow suing on behalf of herself
and her children for damages arising out of the
death of her husband. The jury found the deceased
was 75 per cent at fault and the defendant 25 per
cent. The plaintiff herself had not been in any way
at fault in respect of her husband's death. She was
not therefore liable to make good any part of the
damage or loss. She was accordingly given her
costs in full, although the defendant was only
liable for 25 per cent of the damage or loss. Mr.
Smith, for the defendants here, indicated his view
that the principles of the Thomson decision (deal-
ing with section 4) were applicable. 13
u R.S.B.C. 1960, c. 74.
12 (1965) 49 D.L.R. (2d) 383.
"The Supreme Court of Canada referred only to section 2 of
the Contributory Negligence Act. It seems logical to me that if
section 2 applies to this action, then section 4 applies as well.
There is one difficulty. In the Thomson case and
in the authorities therein cited none of the named
plaintiffs, nor any of the persons on whose behalf
the actions were brought, had been at fault in any
way for the death of the deceased. That is not the
case here. The Trial Judge has found that those on
board the sailboat were partly at fault. One of the
persons on whose behalf this action is brought is
Ross Stein. He was acting as skipper.
In my view the defendants are entitled to some
abatement or consideration in respect of costs
because of that factor. Some fault must be
attributed to Ross as well as to the deceased. No
apportionment of the damages has been made as
among the widow and the three children. I am
therefore unable to direct that any costs which I
award to the defendants should be paid out of the
particular share which may ultimately go to Ross
Stein. For all I know, this Court may never be
asked to make any formal apportionment of the
damages.
In the circumstances, and in the exercise of my
discretion, I direct the defendants recover from the
plaintiffs 8 per cent of their taxable costs of this
action. I have there used a somewhat arbitrary
figure. Counsel for the parties may be able, on the
basis of the 8 per cent figure, to agree on some
fixed sum for the defendants' costs. That would
avoid the necessity of a taxation. I shall withhold
issuing a formal pronouncement until I hear from
counsel on that point.
To summarize:
1. The costs of this action will be taxed on the
basis of a Class III action.
2. The plaintiffs will recover their costs in full
against the defendants.
3. The defendants will recover 8 per cent of
their costs (or an agreed lump sum figure) from
the plaintiffs, that amount to be deducted from
the costs payable to the plaintiffs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.