McNair,
J:—The
actions
shown
in
this
consolidated
style
of
cause
are
appeals
by
the
three
plaintiffs
from
assessments
for
income
tax
which
were
tried
before
the
Honourable
Mr
Justice
Cattanach
on
April
19,
20,
21
and
22,
1983
and
May
11,
1983.
Obviously,
the
three
actions
were
tried
together
on
common
evidence
by
virtue
of
orders
in
that
behalf
and
by
consent.
Moreover,
the
learned
trial
judge
wrote
one
set
of
reasons
for
judgment
which
were
filed
separately
in
each
case.
I
propose
to
deal
with
the
matter
in
the
same
manner,
that
is,
by
giving
a
consolidated
version
of
reasons
applicable
to
the
three
actions
and
filing
the
same
separately
therein.
This
action
involves
a
324
motion
by
the
defendant
for
special
directions
under
Rule
344(7)
with
respect
to
the
costs
of
an
expert
witness
called
by
the
defendant
in
the
single,
consolidated
trial.
The
issue
in
each
case
is
identical
and
concerns
the
proper
allowance
of
the
witness’s
costs
on
a
party
and
party
taxation
pursuant
to
subsection
4(2)
of
Tariff
A
and
subsection
2(2)
of
Tariff
B
of
the
Federal
Court
Rules.
The
relevant
paragraphs
of
the
supporting
affidavits
of
the
defendant’s
solicitor,
Beverly
J
Hobby,
filed
in
support
of
the
motions
are
the
same
in
each
case,
and
read
as
follows:
In
order
to
defend
the
action,
it
was
essential
to
retain
an
expert
witness,
Robert
L
de
Pfyffer,
a
real
estate
appraiser,
to
prepare
a
written
report,
to
provide
enlargements
of
maps
and
aerial
photographs
for
use
at
trial,
which
have
all
been
filed
on
behalf
of
the
Defendant
with
this
Honourable
Court,
and
to
give
viva
voce
evidence
regarding
the
fair
market
value
as
at
December
31,
1971,
of
certain
lands
owned
by
the
Plaintiffs.
4.
For
the
preparation
of
the
written
report
and
for
attending
at
trial
to
give
viva
voce
evidence,
Robert
L
de
Pfyffer
rendered
to
the
Defendant
three
accounts
totalling
$3,582.50.
Attached
hereto
and
marked
as
Exhibit
“A”
to
this
my
Affidavit
are
copies
of
the
said
three
accounts,
dated
May
24,
1983.
5.
In
order
to
defend
this
action,
it
was
also
necessary
to
make
certain
disbursements
totalling
$1,421.22,
which
disbursements
are
itemized
in
the
three
accounts
attached
to
this
my
Affidavit
as
Exhibit
“A”.
6.
It
is
my
opinion
and
belief
that
all
the
expenses
of
Mr
Robert
L
de
Pfyffer
were
necessary
for
the
proper
fulfillment
of
his
duties
as
an
expert
witness
in
the
field
of
real
estate
appraisal,
were
essential
to
the
proper
conduct
of
the
action
and
were
reasonable
having
regard
to
all
the
circumstances.
|
The
affidavit
avers
that
de
Pfyffer
|
.
rendered
to
the
defendant
three
ac
|
counts
totalling
$3,582.52”,
which
were
annexed
as
Exhibit
“A”
thereto.
The
phraseology
is
quite
misleading
for
the
figure
of
$3,582.52
represents
only
the
total
of
the
witness’s
fees
for
time
expended
and
not
the
total
of
the
three
accounts,
as
one
would
be
bound
to
conclude
on
first
impression.
There
were
also
disbursements
in
the
total
amount
of
$1,421.22
so
the
sum
total
of
the
three
accounts
actually
came
to
$5,003.72.
To
put
the
matter
in
proper
perspective,
it
should
be
observed
that
the
judgments
pronounced
awarded
the
plaintiffs
limited
or
partial
success
only
and
concluded
by
stating
that
in
all
other
respects
the
Minister’s
assessment
in
each
case
was
confirmed
with
costs
to
the
defendant.
Costs
followed
the
major
event
and
the
judgment
makes
it
very
clear
that
they
were
to
be
taxed
on
a
party
and
party
basis
according
to
Tariff
A
and
Tariff
B.
Defendant’s
counsel
submits
by
way
of
written
representations
that
the
defendant’s
real
estate
appraiser,
Robert
L
de
Pfyffer,
was
a
necessary
and
material
expert
witness
with
a
view
to
preparing
a
written
appraisal
or
report
and
giving
viva
voce
evidence
at
trial
regarding
the
fair
market
value
on
V-Day
of
certain
of
the
plaintiffs’
lands.
He
points
out
that
the
trial
judge
preferred
the
evidence
of
de
Pfyffer
to
that
of
the
plaintiffs’
expert.
Counsel
for
the
plaintiff
represents
that
subsection
4(2)
of
Tariff
A
provides
reasonable
payment
for
services
performed
by
an
expert
witness
in
preparing
himself
to
give
evidence
and
giving
evidence
and
that
the
defendant
is
only
entitled
to
costs
reasonably
allocable
to
de
Pfyffer’s
presentation
and
that
the
defendant
is
not
entitled
to
recover
anything
for
costs
incurred
in
respect
of
the
expert’s
study
and
report
upon
appraisals
of
the
plaintiffs
expert
witness
or
any
costs
incurred
for
his
attendance
at
trial
on
April
19,
20
and
21
when
he
was
not
giving
evidence.
He
contends
in
the
alternative
that
the
costs
incurred
for
the
defendant’s
expert
were
not
necessary
for
the
proper
presentation
of
the
case
inasmuch
that
the
onus
rested
on
the
plaintiff
to
demolish
the
validity
of
the
Minister’s
assessment
so
that
these
costs
were
not
in
fact
necessary
to
the
case.
I
consider
that
this
contention
is
without
merit
by
reason
that
the
appeals
involved
the
determination
of
the
market
value
of
land
which
is
clearly
a
subject
matter
for
expert
evidence.
Rule
344(7)
essentially
provides:
Rule
344
.
.
.
(7)
Any
party
may
(a)
after
judgment
has
been
pronounced,
within
the
time
allowed
by
Rule
377(5)
to
move
the
Court
to
consider
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
contemplated
by
Tariff
B,
and
to
decide
any
question
as
to
the
application
of
any
of
the
provisions
in
Rule
346
.
.
.
Subsection
4(2)
of
Tariff
A
states:
4.
.
..
(2)
In
lieu
of
making
a
payment
under
section
3,
there
may
be
paid
to
a
witness
who
appears
to
give
evidence
as
an
expert
a
reasonable
payment
for
the
services
performed
by
the
witness
in
preparing
himself
to
give
evidence
and
giving
evidence.
Subsection
2(2)
of
Tariff
B
states:
2.
The
following
may
be
allowed
unless
the
Court
otherwise
directs:
(2)
Disbursements
(a)
all
disbursements
made
under
Tariff
A
may
be
allowed,
except
that
payments
to
a
witness
under
paragraph
4(2)
may
only
be
allowed
to
the
extent
directed
by
the
Court
under
Rule
344(7).
(b)
such
other
disbursements
may
be
allowed
as
were
essential
for
the
conduct
of
the
action.
Section
3
of
Tariff
B
provides:
3.
No
amounts
other
than
those
set
out
above
shall
be
allowed
on
a
party
and
party
taxation,
but
any
of
the
above
amounts
may
be
increased
or
decreased
by
the
direction
of
the
Court
in
the
judgment
for
costs
or
under
Rule
344(7).
The
authorities
formulate
several
cardinal
principles
with
respect
to
the
taxation
of
costs.
Special
directions
regarding
costs
are
very
much
the
exception.
The
normal
rule
is
that
a
successful
party
is
entitled
to
costs
on
a
party
and
party
basis
in
accordance
with
the
prescribed
tariff.
The
length
or
complexity
of
a
case
or
the
volume
of
work
required
in
connection
therewith
are
not
sufficient
factors
by
themselves
to
warrant
a
special
direction
as
to
costs
under
Rule
344(7).
Where
the
Court
gives
judgment
for
costs
to
be
taxed
it
cannot
subsequently
substitute
a
lump
sum
therefor
except
by
way
of
reconsideration
of
the
judgment
for
reasons
which
fall
within
the
ambit
of
sub-rules
337(5)
or
(6).
Rule
344(7)
authorizes
applications
for
special
directions
concerning
costs.
It
does
not
authorize
applications
to
change
the
pronouncement
or
signing
of
judgment.
An
application
for
special
directions
as
to
costs
under
Rule
344(7)
must
be
made
within
10
days
of
the
pronouncement
of
judgment
by
virtue
of
Rule
337(5)
or
at
the
time
of
the
return
of
the
motion
for
judgment
and
while
the
matter
is
sufficiently
fresh
in
the
mind
of
the
Court
to
enable
it
to
determine
whether
there
were
any
circumstances
in
the
particular
case
to
justify
a
departure
from
the
normal
tariff
amount.
See
Guerin
et
al
v
The
Queen,
[1982]
2
FC
445,
127
DLR
(3d)
170;
Smerchanski
v
MNR,
[1979]
1
FC
801;
MacMillan
Bloedel
(Saskatchewan)
Ltd
v
Consolboard
Inc
(1981),
124
DLR
(3d)
342;
Carruthers
v
The
Queen,
[1983]
CTC
15;
83
DTC
5076;
Maligne
Building
Ltd
et
al
v
The
Queen,
[1983]
2
FC
301;
and
CAE
Industries
Ltd
et
al
v
The
Queen,
[1983]
2
FC
616.
Carruthers
v
The
Queen,
supra,
is
a
case
very
much
on
point
with
the
instant
one.
Mr
Justice
Walsh
made
these
very
significant
comments
at
17
[5078]:
.
.
.
It
is
generally
accepted
that
the
payment
for
an
expert
witness
of
$35
pursuant
to
Rule
4(1)
of
Tariff
A
is
completely
inadequate
and
unreasonable.
Subsection
(2)
provides
that
there
may
be
paid
to
a
witness
who
appears
to
give
evidence
as
an
expert
a
reasonable
payment
for
the
services
performed
by
the
witness
in
preparing
himself
to
give
evidence
and
giving
evidence.
[Emphasis
added].
Tariff
B
Section
2(2)(a)
provides
that
all
disbursements
made
under
Tariff
A
may
be
allowed
except
that
payments
to
a
witness
under
paragraph
4(2)
may
only
be
allowed
to
the
extent
directed
by
the
Court
under
Rule
344(7).
As
already
stated
Rule
344(7)
refers
back
to
Rule
337(5)
which
requires
such
an
application
to
be
made
within
10
days
from
the
pronouncement
of
the
judgment
al-
though
it
contains
a
provision
that
this
may
be
extended
to
such
further
time
as
the
Court
may
allow,
either
before
or
after
the
expiration
of
that
time
.
.
.
In
Carruthers
the
plaintiff
moved
for
an
order
extending
the
time
as
part
of
the
application
for
a
special
direction
concerning
the
costs
of
the
expert
witness.
Walsh,
J
extended
the
time
for
making
the
motion,
classified
the
action
as
Class
II
and
concluded
that
the
amount
of
the
expert’s
costs
should
be
determined
by
agreement
or
on
taxation
followed
by
an
appeal
therefrom,
if
necessary.
In
this
case
the
defendant
sought
no
order
extending
the
time
for
making
the
application,
although
it
was
clearly
out
of
time.
Despite
that,
the
plaintiff
took
no
objection
and
proceeded
to
address
the
matter
on
the
merits.
Under
the
circumstances,
it
is
my
opinion
that
any
irregularity
with
respect
to
time
was
thereby
waived.
The
defendant
really
seeks
by
way
of
its
application
for
special
directions
simply
to
have
the
Court
tax
the
full
amount
of
its
expert’s
costs,
which
I
am
not
prepared
to
do.
My
colleague,
Dubé,
J
put
the
matter
very
succinctly
in
Maligne
Building,
supra,
where
he
said:
.
.
.
It
is
not
the
function
of
the
judge
to
tax
costs.
Costs
are
taxed
under
Rule
346
by
the
proper
taxing
officer.
Where
a
party
is
not
satisfied
with
the
determination
of
the
taxing
officer,
he
may
appeal.
Based
on
the
foregoing,
I
hereby
make
the
following
special
directions.
ORDER
AND
SPECIAL
DIRECTIONS
1.
The
action
is
classified
as
a
Class
III
action.
2.
The
parties
should
make
an
effort
to
agree
on
a
realistic
fee
for
the
costs
of
the
defendant’s
expert
witness.
3.
Failing
that,
the
expert
witness’s
costs
should
be
taxed
by
a
taxing
officer
as
provided
by
the
Rules.
4.
Without
meaning
to
prejudge
the
matter
or
fetter
the
discretion
of
the
taxing
officer,
it
is
hereby
directed
pursuant
to
Rule
344(7)
and
subsection
2(2)
of
Tariff
B,
that
the
defendant’s
disbursements
in
respect
of
its
expert
witness
be
taxed
and
allowed
under
subsection
4(2)
of
Tariff
A
at
a
reasonable
amount
for
the
services
performed
by
the
witness
in
preparing
himself
to
give
evidence
and
giving
evidence,
having
due
regard
to
the
following
factors:
(1)
the
reasonableness
of
the
extent
of
the
time
spent
by
the
expert
witness
in
preparing
himself
to
give
evidence
and
giving
evidence;
(2)
the
reasonableness
of
the
time
rate
or
hourly
charge
therefor;
(3)
whether
the
preparation
for
and
the
giving
of
evidence
at
trial
shall
be
taken
to
include
attendance
fees
in
court
for
time
other
than
that
actually
spent
in
testifying
as
a
witness;
and
(4)
whether
time
for
travel
and
other
attendances
not
specifically
referable
to
the
time
spent
in
preparation
for
trial
and
giving
evidence
in
court
ought
to
be
compensated
at
the
full
hourly
rate
or
something
less,
or
at
all;
5.
No
order
is
made
as
to
costs.
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