T-2304-86
Domenico Vespoli, Precision Mechanics Ltd.,
80591 Canada Limited, Paradis Vespoli Ltée and
Bruce Verchère, Marc Noël, Ross B. Eddy, Geof-
frey Lawson, Guy Du Pont and Simon Tardif,
operating as the partnership Verchère, Noël &
Eddy (Applicants)
v.
The Queen (Respondent)
INDEXED AS: VESPOLI v. CANADA
Trial Division, Pinard J.—Montréal, October 20;
Ottawa, November 16, 1987.
Practice — Costs — Federal Court order to pay costs not
including distraction in favour of counsel of party to whom
costs awarded within meaning of art. 479 Code of Civil
Procedure (Que.) — Federal Court Rules not providing for
distraction — Rules awarding costs to party — R. 5 not
justifying application of art. 479 — Distraction of costs matter
of substantive law — R. 5 applicable to practice matters only.
Civil Code — Federal Court Rules not providing for dis
traction of costs in favour of counsel within meaning of art.
479 — R. 5 not justifying application of art. 479 — Distrac
tion of costs matter of substantive law — R. 5 concerned with
practice only.
Barristers and solicitors — Civil Code permitting distrac
tion of costs in favour of solicitor of party to whom costs
awarded — No provision for distraction in Federal Court
Rules — Distraction matter of substantive law — Distraction
judgment in favour of solicitor — Constituting personal title
to costs — R. 5 inapplicable as concerning matters of practice
only.
Income tax — Practice — No set-off between court costs
awarded to taxpayer and tax claimed by M.N.R. until M.N.R.
consenting to set-off pursuant to s. 224.1 of Act.
This case concerns the application of Rule 5 of this Court
(the gap rule) and article 479 of the Quebec Code of Civil
Procedure (C.C.P.). The applicants argue that where a case
arises in the Province of Quebec, a Federal Court order to pay
costs automatically includes distraction in favour of counsel for
the party to whom the costs are awarded. They base their
contention on Rule 5 and on the application of article 479 by
analogy. There was also an issue as to set-off.
Held, the court costs awarded to the taxpayers cannot be
distracted in favour of their solicitors. There can be no set-off
as the case now stands.
Rule 5 of this Court cannot be relied upon to justify the
application of article 479 C.C.P. It would be wrong to depart
from the path followed by the Federal Court in the Bourque,
Osborn and Warwick Shipping cases. Those cases stand for the
proposition that nothing in the Federal Court Act nor in the
Rules of the Court provides for distraction of costs such as
exists in article 479. In Warwick Shipping, Walsh J. was of the
opinion that the Federal Court Rules provided for costs and
that "there was no omission that needed to be covered". That is
confirmed by a reading of Rules 344 to 353 inclusively: costs
are awarded to the party and there is no provision for their
distraction to the party's counsel. In United States v. French
Sardine Co., the U.S. Circuit Court of Appeals, 9th Cir., held
that the "right to costs ... is a substantive right and not a mere
matter of procedure". Rule 5 cannot be applied since its scope
is limited to matters of procedure while distraction is a matter
of substantial law.
There can be no set-off at this time between the duly taxed
court costs awarded to the applicant taxpayers and those
awarded to the respondent. Set-off cannot operate until the
court costs awarded to the respondent are taxed and the
consent of the appropriate Minister responsible for the payment
of duly taxed court costs to the applicant taxpayers is indicated
to the latter, pursuant to section 156 of the Financial Adminis
tration Act. Furthermore, there can be no set-off between the
amount of court costs taxed and awarded to the applicant
Precision Mechanics Ltd. and the amount of tax claimed from
it by the Minister of National Revenue, so long as the latter has
not indicated to the former his intent to require such a set-off
for a specific amount within the meaning of section 224.1 of the
Income Tax Act.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Code of Civil Procedure, art. 479.
Federal Court Rules, C.R.C., c. 663, RR. 5, 344-353,
475.
Financial Administration Act, R.S.C. 1970, c. F-10, s.
156 (as am. by S.C. 1980-81-82-83, c. 170, s. 21; 1984,
c. 31,s. 12).
Income Tax Act, S.C. 1970-71-72, c. 63, ss. 224.1 (as
am. by S.C. 1980-81-82-83, c. 48, s. 104), 225.1 (as
added by S.C. 1985, c. 45, s. 116).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
National Capital Commission v. Bourque (No. 2), [1971]
F.C. 133 (T.D.); Osborn Refrigeration Sales and Service
Inc. v. The "Atlantean I", [1979] 2 F.C. 661 (T.D.);
Warwick Shipping Ltd. v. R., [1981] 2 F.C. 57 (T.D.);
Lariveau v. Minister of Manpower and Immigration,
[1971] F.C. 390 (C.A.); Magrath v. National Parole
Board of Canada, [1979] 2 F.C. 757 (T.D.); Colet v. R.,
[1980] 1 F.C. 132 (T.D.).
APPLIED:
Pelletier v. Simard & al. (1940), 44 R.P. 129 (Que.
S.C.); Fortier v. Brault et Rouleau, [1942] B. R. 175
(Que.); United States v. French Sardine Co., 80 F.(2d)
325 (9th Cir., 1935).
CONSIDERED:
Jim Russel International Racing Drivers School
(Canada) Ltd. c. Hite et Flite, [1986] R.D.J. 160 (Que.
C.A.); Hall v. Campbellford Cloth Company Limited,
[1944] O.W.N. 202 (H.C.).
NOT FOLLOWED:
Weight Watchers International Inc. v. Burns, [1976] 1
F.C. 237 (T.D.).
COUNSEL:
Basile Angelopoulos and Patrice Marceau for
applicants.
Normand Lemyre for respondent.
SOL IC (TORS:
Verchère, Noël & Eddy, Montréal, for
applicants.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
PINARD J.: The Court having given leave to set
down for argument the special case submitted by
the parties in lieu of trial, pursuant to Rule 475 of
this Court [Federal Court Rules, C.R.C., c. 663],
and the said argument having been presented, the
Court must now rule on the points stated in that
case, consisting of a document in the record titled
"Re-amended Agreed Statement of Facts and
Issues", which it would be too long to set out here
but which of course must be borne clearly in mind.
The first point to be decided concerns applica
tion of Rule 5 of this Court and article 479 of the
Quebec Code of Civil Procedure [C.C.P.]. These
provisions state:
Rule 5. In any proceeding in the Court where any matter
arises not otherwise provided for by any provision in any Act of
the Parliament of Canada or by any general rule or order of the
Court (except this Rule), the practice and procedure shall be
determined by the Court (either on a preliminary motion for
directions, or after the event if no such motion has been made)
for the particular matter by analogy
(a) to the other provisions of these Rules, or
(b) to the practice and procedure in force for similar pro
ceedings in the courts of that province to which the subject
matter of the proceedings most particularly relates,
whichever is, in the opinion of the Court, most appropriate in
the circumstances.
479. Every condemnation to costs involves, by operation of
law, distraction in favour of the attorney of the party to whom
they are awarded. Nevertheless the party himself may execute
for the costs if the consent of his attorney appears on the writ of
execution.
The applicants argued that in a case in the
Federal Court of Canada an order to pay costs
automatically includes distraction in favour of
counsel for the party to whom they are awarded,
provided that the case arose in the province of
Quebec, and they based this on Rule 5 of this
Court and the application of article 479 C.C.P. by
analogy.
Three relevant judgments of the Federal Court
of Canada have referred specifically to article 479
C.C.P. In the first case, National Capital Com
mission v. Bourque (No. 2), [1971] F.C. 133
(T.D.), the plaintiff applied to the Court for direc
tions under paragraph 17(3)(c) of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10] that
defendants' solicitor and client costs should be
taxed and paid directly to the defendants' solicitor.
Noël A.C.J. considered that paragraph 17(3)(c)
did not apply in the circumstances, since the plain
tiff was not the Crown but merely an agency of the
Crown. He went on, at page 135:
There is also a further obstacle to granting applicants'
request in that in so far as l, can see, costs in a trial are party
costs and belong to the party and not the solicitor. There is
indeed nothing in the Federal Court Act, or in our Rules, which
states that a condemnation to costs involves distraction in
favour of the solicitor or attorney of the party to whom they are
awarded, such as exists in art. 479 of the Quebec Code of Civil
Procedure....
In a second case, Osborn Refrigeration Sales
and Service Inc. v. The "Atlantean I", [1979]
2 F.C. 661 (T.D.), Walsh J. dealing with the
matter of distraction said strictly the following, at
page 691:
In the case of National Capital Commission v. Bourque
[No. 21 ([1971] F.C. 133) Associate Chief Justice Noël held at
page 135 that:
There is indeed nothing in the Federal Court Act, or in our
Rules, which states that a condemnation to costs involves
distraction in favour of the solicitor or attorney of the party to
whom they are awarded, such as exists in art. 479 of the
Quebec Code of Civil Procedure, which reads as follows:
It is Mr. Caron therefore who should be collocated for these
costs.
Finally, in Warwick Shipping Ltd. v. R., [1981]
2 F.C. 57 (T.D.), Walsh J. again considered the
point, discussed it at somewhat greater length and
said the following at pages 65 and 66:
There is a serious procedural objection to the present motions
however, which prevents them from being granted. After the
death of the late Mr. Fearon no steps were taken pursuant to
Rules 1724 and 1725 for the proceedings to be carried on by
the personal representatives of the deceased. The Federal Court
Rules make no provision for distraction of costs in favour of the
attorneys of the party to whom they are awarded unlike article
479 of the Quebec Code of Civil Procedure. This was pointed
out by Associate Chief Justice Noël in the case of National
Capital Commission v. Bourque [No. 2] ([1971] F.C. 133) and
reiterated in the case of Osborn Refrigeration Sales and Ser
vice Inc. v. The "Atlantean I" ([1979] 2 F.C. 661 at page 691).
Applicants contend that Rule 2(2) or Rule 5 (the gap rule) of
the Rules of this Court might be applied so as to adopt the
Quebec practice, but this argument must be rejected. Federal
Court Rules provide for costs and there is no omission which
needs to be covered resulting from the failure to provide for
distraction of costs in favour of the attorneys of a party. The
late Mr. Fearon's attorneys therefore who present these
motions are not the parties entitled to collect the costs.
The applicants submitted that these precedents
are not conclusive because, first, in Bourque Noël
A.C.J. does not refer expressly to Rule 5 of this
Court or the earlier and similar Rule 2 of the
Exchequer Court, and that therefore he must not
have considered their application. They also dis
missed Osborn because it was strictly based on
Bourque, without further comment. Finally, they
said they disagreed with Walsh J.'s opinion in
Warwick Shipping Ltd., citing in opposition to this
judgment that of Kerr J. in Weight Watchers
International Inc. v. Burns, [1976] 1 F.C. 237
(T.D.). In the latter case, Kerr J. applied by
analogy Rule 696 of the Ontario Supreme Court,
which conferred on the Court a discretionary
power to award to a solicitor a charge upon prop
erty recovered or preserved through the instrumen-
tality of the solicitor for his costs, charges and
expenses of or in reference to the cause, matter or
proceeding in question.
I do not think I should depart from the path
followed by Noël A.C.J. and Walsh J. in Bourque,
Osborn and Warwick Shipping Ltd. above, in
which article 479 C.C.P. is nevertheless specifical
ly considered. It is true that in Bourque Noël
A.C.J. does not expressly refer to Rule 5 of this
Court or Rule 2 of the Exchequer Court, but that
does not necessarily mean they were ignored; in
dealing with a case that arose in Quebec and in
which a party expressly asked that the costs to be
taxed be paid directly to the solicitor, Noël A.C.J.
did consider the distraction mentioned in article
479 C.C.P. in light of the Federal Court Act and
"our Rules". It is also clear that Bourque strongly
influenced the judgments of Walsh J. in Osborn
and Warwick Shipping Ltd., where in the latter
case he expressly considered Rule 5 of this Court
and article 479 C.C.P. together.
In my view, it would be wrong to dismiss the
latter judgments and apply another (Weight
Watchers International Inc.) dealing with Rule 5
in relation to a rule of practice and procedure of
the Ontario Supreme Court, which gives a solicitor
"a charge upon the property recovered or pre
served through the instrumentality of such solici
tor" to guarantee payment of his costs, but is not a
pure distraction of costs to him. Further, the ques
tion arises whether the foregoing cases relating to
Rule 5 of this Court and article 479 C.C.P. were
drawn to the attention of Kerr J., since he said at
page 240:
No decision of this Court dealing directly with the matter
has been drawn to my attention.
I would add in clarification that I consider the
distraction of costs mentioned in article 479
C.C.P. as a matter of substantive law and not a
simple matter of practice and procedure covered
by Rule 5 of this Court.
The nature of the right to distraction has been
considered by the Quebec courts and it seems quite
clear that such distraction is nothing more or less
than a judgment in favour of the solicitor and
constitutes a purely personal title to costs, as the
solicitor's debt is essentially separate from that of
his client. In Pelletier v. Simard & al. (1940),
44 R.P. 129, at page 131, Trahan J. of the Quebec
Superior Court said the following:
[TRANSLATION] Whereas distraction is a judgment in favour
of the attorney and constitutes a purely personal title to his
costs;
Whereas accordingly the attorney's debt is essentially sepa
rate from that of the client, in this case the objector;
Whereas the effect of distraction is also to transfer directly
to the attorney the benefit of the order to pay costs, and the
benefit is deemed never to have resided in the person of the
client; (3 R. de J. 371; 11 C.S. 232;)
Then, in 1942 the Court of King's Bench said
the following in Fortier v. Brault et Rouleau,
[1942] B. R. 175, at page 179:
[TRANSLATION] Distraction of costs is nothing more than a
charge imposed by law, enabling a solicitor who is owed costs
which he has advanced to bring an action for repayment
directly against his client's opponent who has been ordered to
pay the client his costs; (Dalloz, Répertoire pratique (1941)
t. 6, Verbis, Frais et dépens, n. 80, p. 616).
In my opinion this charge does not in any way alter the legal
debtor-creditor relationship of the losing party to the winning
party; it does make a solicitor who has obtained distraction of
costs a direct creditor of the losing party, but it is still the same
debt owed by the loser to the winner and the only purpose of
such distraction is to protect a solicitor by giving him a priority
over his client for the recovery of this debt, so much so that a
simple consent by the solicitor given to his client will suffice to
allow the latter to enforce the order to pay costs on his behalf,
without the solicitor having to accompany the consent with a
transfer of his debt.
In Scheffer v. Demers, ((1897) 3 R. J. 371), de Lorimier J.
said:
Distraction of costs awarded to the solicitor ad litem is to
protect against any arrangement the parties may make to his
detriment; it gives the solicitor a right to a personal debt
against the losing party, and the solicitor's client, who
remains liable to him for this debt, as his client, is simply an
indirect creditor of the losing party; [My emphasis.]
These precedents do not appear to have been
subsequently overruled. More recently, in 1986,
the Quebec Court of Appeal even held that the
right to distraction could not exist for solicitors
who are not on the record: in Jim Russel Interna
tional Racing Drivers School (Canada) Ltd. c.
Hite et Flite, [1986] R.D.J. 160, the Court of
Appeal said the following at page 163:
[TRANSLATION] Whereas moreover, under the provisions of
Art. 479 C.C.P., the intervenors are no longer solicitors of
record, they are not entitled to distraction of their costs against
the appellant but have only a claim for them against their own
client;
Finally, the U.S. precedents submitted by coun
sel for the respondent must be considered in the
manner described by Chevrier J. in Hall v. Camp-
bellford Cloth Company Limited, [1944] O.W.N.
202 (H.C.), at page 206:
American decisions ... might be considered, not as binding
authority, but as "intrinsically entitled to the highest respect",
as said by Parker J. in Doe d. DesBarres v. White (1842),
3 N.B.R. 595 (quoted by Ritchie C.J. in Sherren v. Pearson,
(1887), 14 SCR 581 at 587).
Counsel for the respondent referred to several
judgments from various U.S. States which all rely
directly or indirectly on the following landmark
decision by the Circuit Court of Appeals, Ninth
Circuit, on December 2, 1935, in United States v.
French Sardine Co., 80 F.(2d) 325. In that case
Wilbur J. said the following, at page 326 of his
judgment:
While the right to costs is ancillary to the judgment, it is a
substantive right and not a mere matter of procedure. As stated
in Erwin v. United States (D.C.) 37 F. 470, 488, 2 L.R.A. 229:
"'In its general acceptation "proceeding" means the form in
which actions are to be brought and defended, the manner of
intervening in suits, of conducting them, the mode of deciding
them, of opposing judgments, and of executing.' 'Ordinary
proceedings intend the regular and usual mode of carrying on a
suit by due course of common law.' " People v. White,
14 How.Prac. (N.Y.) 498.
The distinction between a right to costs and the procedure for
the enforcement of that and other rights is pointed out in Fargo
v. Helmer, 43 Hun (N.Y.) 17, 19, where the court, quoting
Judge Duer in Rich v. Husson, 8 N.Y.Super.Ct. (1 Duer) 617,
said: "The rules by which proceedings are governed are rules of
procedure; those by which rights are established and defined,
rules of law. It is the law which gives a right to costs and fixes
their amount. It is procedure which declares when and by
whom the costs, to which a party has a previous title, shall be
adjusted or taxed, and when and by whose direction a judgment
in his favor shall be entered." The right to costs is not a
question of procedure but is a substantive right.
Two things are clear from reading the Rules of
this Court on costs, in particular Rules 344-353
inclusive: costs are awarded to the party and there
is no provision for their distraction to the party's
counsel. As I said earlier, Rule 5 of this Court
could only be applied to pure matters of practice
and procedure, not to matters of substantive law. I
think that is fully confirmed by the following three
judgments of the Federal Court of Canada.
In Lariveau v. Minister of Manpower and
Immigration, an Appeal Division judgment report
ed at [1971] F.C. 390, Jackett C.J. first said the
following at pages 390-391:
Firstly, in view of the fact that the meaning of Rule 5 is a
matter of general interest, I shall explain in my own words my
reason for holding that this Rule does not apply to a matter
such as that before the Court. As I understand it, this Rule
authorizes the Court to determine the "practice" and "proce-
dure" to be followed in a "proceeding in the Court" concerning
which there is a gap in the Rules. We are not concerned here
with a question concerning the "practice" or "procedure" to be
followed in a proceeding in this Court. In fact, the Court is
being asked to grant at this time, on a temporary basis, a
remedy which it may only grant after an appeal is heard.
Later in the same case Pratte J. explained, at
pages 393-394:
According to appellant, as the Rules do not provide, in a case
such as this, that the execution of the order from which he
intends to appeal be stayed, the Court, in accordance with Rule
5, should compensate for this deficiency and, by analogy to the
first paragraph of art. 497 of the Quebec Code of Civil
Procedure, order a stay of execution. This paragraph of art. 497
reads as follows:
497. Saving the cases where provisional execution is
ordered, an appeal regularly brought suspends the execution
of judgment.
In fact, this is not a motion which may be allowed under
Rule 5. A motion for directions may be made under this Rule
only in cases where the Rules present a deficiency, that is, do
not specify the manner of exercising a right or means of
defence. The fact that the Rules do not provide for a stay of
execution in a case such as the present is not a deficiency: it can
be concluded, from the absence of a rule of practice on this
point, simply that unless other legislative provisions state the
contrary the decisions of the Immigration Appeal Board are to
be enforced notwithstanding an appeal. This solution is perhaps
open to criticism, but this is not a deficiency which can be the
basis for submitting a motion under Rule 5. [My emphasis.]
Subsequently, in Magrath v. National Parole
Board of Canada, [1979] 2 F.C. 757 (T.D.), at
pages 761-762, Walsh J. said:
Applicant invokes the gap rule of this Court, Rule 5, which
reads as follows:
but I do not consider it is applicable in the present circum
stances. The absence of any provision in the Rules applying for
proceedings in forma pauperis was not, I believe, a result of
any oversight and is more likely to be a conclusion that after
due consideration it was not deemed necessary. Moreover,
applicant himself contends that this is not a question of proce
dure but of substantive law, in which event it should be dealt
with by statute and not by a Rule of the Court. In England it
was dealt with by statute and not by a Rule of the Court, and
the British Columbia Courts have decided that the right to
proceed in forma pauperis is a substantive and not a mere
procedural right.
Finally, in Colet v. R., [1980] 1 F.C. 132
(T.D.), Collier J. said at page 135:
Counsel again goes to the gap rule and section 84 of the
Supreme Court Act of British Columbia. I do not subscribe to
the submission that section 84 is "practice and procedure in
force for similar proceedings" in B.C. The section is, to my
mind, not a matter of practice and procedure. It is a matter of
substantive law.
For all these reasons I must rule on the first
point that it is not possible in the circumstances to
properly rely on Rule 5 of this Court as a justifica
tion for applying article 479 C.C.P. Accordingly,
the court costs already awarded to the taxpayers
who are parties to the case at bar cannot be
distracted in favour of the applicant solicitors.
In view of this conclusion, I must now decide the
points raised in paragraphs 13 and 14 of the
special case submitted by the parties regarding a
set-off.
First, as regards the set-off between the duly
taxed court costs awarded to the applicant taxpay
ers and the court costs awarded to the respondent,
which have not yet been taxed, the Court must
consider the following applicable provisions of sec
tion 156 of the Financial Administration Act,
R.S.C. 1970, c. F-10, as amended [by S.C. 1980-
81-82-83, c. 170, s. 21; 1984, c. 31, s. 12], which
provides:
156. (1) Where any person is indebted to
(a) Her Majesty in right of Canada, or
the appropriate Minister responsible for the recovery or collec
tion of the amount of the indebtedness may authorize the
retention of the amount of the indebtedness by way of deduc
tion from or set-off against any sum of money that may be due
or payable by Her Majesty in right of Canada to the person or
the estate of that person.
(4) No amount may be retained under subsection (1) with
out the consent of the appropriate Minister under whose
responsibility the payment of the sum of money due or payable
referred to in that subsection would but for that subsection be
made.
In the case at bar the court costs awarded to the
respondent have not yet been taxed and her coun
sel admitted that the formality required in subsec
tion 156(4) above, regarding consent by the appro
priate Minister, has not yet been completed.
Accordingly, as things stand at present the
Court must rule that there is no set-off and that it
cannot take place before the court costs awarded
to the respondent are taxed and the consent of the
appropriate Minister responsible for the payment
of duly taxed court costs to the applicant taxpayers
is clearly indicated to the latter.
Secondly, and lastly, as regards the set-off be
tween the amount of the court costs awarded to
the applicant Precision Mechanics Ltd. and taxed
and the amount of tax claimed from it by the
Minister of National Revenue, the Court has to
consider the following applicable provisions of sec
tion 224.1 of the Income Tax Act, S.C. 1970-71-
72, c. 63, as amended [by S.C. 1980-81-82-83,
c. 48, s. 104], which provides:
224.1 Where a person is indebted to Her Majesty under this
Act or under an act of a province with which the Minister of
Finance has entered into an agreement for the collection of the
taxes payable to the province under that act, the Minister may
require the retention by way of deduction or set-off of such
amount as the Minister may specify out of any amount that
may be or become payable to such person by Her Majesty in
right of Canada.
In the case at bar although an objection was
made by the applicant Precision Mechanics Ltd. to
the amount of tax claimed and the Minister of
National Revenue has not yet affirmed or varied
the original assessment, the fact remains that sec
tion 224.1 of the Income Tax Act, above, gives the
latter the right to require a set-off up to a specific
amount which, of course, must not exceed that of
the debt owed to Her Majesty.
Since as things stand at present there is no
indication that the Minister of National Revenue
has required a set-off of any amount owed to Her
Majesty, there can be no set-off in the meantime. I
must therefore rule that there can be no set-off
between the amount of court costs taxed and
awarded to the applicant Precision Mechanics Ltd.
and the amount of tax claimed from it by the
Minister of National Revenue, so long as the latter
has not indicated to the former his intent to
require such a set-off for a specific amount within
the meaning of section 224.1 of the Income Tax
Act.
In concluding, it should be emphasized that the
effect of section 224.1 of the Income Tax Act,
above, is in no way altered by the provisions of
section 225.1 of the same Act [as added by S.C.
1985, c. 45, s. 116], which was not in effect when
the notice of assessment was served by the Minis
ter of National Revenue on the applicant Precision
Mechanics Ltd., that is before 1985.
Judgment is rendered accordingly on the points
stated in the special case submitted by the parties.
I am prepared to hear the parties, if one of them
requests, on the court costs associated with the
application at bar made pursuant to Rule 475.
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.