Canada v. Canadian Pacific Ltd., 2002 DTC 6742, [2002] 3 F.C. 170, 2002 FCA 98

                                                                                                                                            Date: 20020312

                                                                                                                                        Docket: A-701-00

                                                                                                                  Neutral citation: 2002 FCA 98

CORAM:        STRAYER J.A.

BETWEEN:

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                       Appellant

                                                                                 and

                                                    CANADIAN PACIFIC LIMITED

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

STRAYER J.A.

[1]                 As I understand it, the respondent in this appeal brings this motion, filed on February 5, 2002, requesting that the Court reconsider its judgment issued on December 21, 2001, dismissing the appeal with costs. Specifically, it wants not only costs in that appeal but, as it requested in its memorandum of fact and law in the appeal

its costs throughout, including its costs for all prior steps in these proceedings including the hearings before the Tax Court of Canada and the appeals before this Court and the Supreme Court of Canada.

In our judgment we dismissed the appeal "with costs".

[2]                 The respondent now appears to want the Court to reconsider its judgment of December 21, 2001. The motion purports to be brought under Rule 403 for "directions" that the costs awarded are to include costs in other courts and other proceedings. But what is now being sought is an award of costs which was not made by the Court in its judgment. That is not permitted under Rule 403. Instead, the judgment would have to be rewritten. The only basis upon which this could be done would be Rule 397(1), where it must be shown that either the order does not accord with the reasons or that some matter which should have been dealt with has been overlooked. The present motion establishes neither criteria. There is nothing in the judgment inconsistent with the reasons. Nor is there any basis for saying some matter was overlooked. The Court had before it the respondent's memorandum of fact and law with the special request for costs. It considered that and simply ordered dismissal "with costs" without any exceptional terms. While the respondent now says counsel for the appellant had agreed to a wider award, as far as I can determine from my notes and from the Court record that agreement was never brought to the attention of the Court. Thus it was not "overlooked".

[3]                 In any event a motion under Rule 397 must be brought within 10 days of the order. Even allowing for the Christmas recess this motion was brought 4 weeks after the time began to run and over 6 weeks after the judgment was actually issued.

[4]                 The motion will therefore be dismissed.

          (s) "B.L.Strayer"          

J.A.