Swan v. Canada (Attorney General), docket T-2601-96

THE COURT:

     On this I find the error to be that the Court of Appeal Order does not apply in the actions taken by the pension decision-maker, and accordingly, I set the Order aside. I would further refer the Order back to the decision-maker for redetermination, such determination to be that the pension benefit to be granted to the applicant is to be 31.97 percent of the entire pension from the date of the Divorce Order, being April 21st, 1987. Is there anything further you might require?

MS. WILSON:

     I know costs are unusual, sir, but this lady is retired, and I wonder whether costs could be granted for this application.

THE COURT:

     Any submissions on that?

MS. KING:

     We would oppose costs, sir. The Rules specifically state that they are only payable in special circumstances. We submit there are no special circumstances here.

THE COURT:

     What would be the special circumstance other than hardship?

MS. WILSON:

     We had to hire an expert. That disbursement was $1,200 to have him review the pension materials. He had to review the entire pension file to get a feel for what they had done and then apply his own expertise to the numbers. That would be the major disbursement. There are quite a bit of disbursements in all the photocopying that one has to do for this as well, probably 2 or $300 there, plus fees. Simply, the special circumstances that she is retired and has had to get this far just to get something that was ordered to her in 1987. It has been a difficult road for her.

THE COURT:

     So what costs would include are those disbursements which are about $1,500, plus party-to-party costs, which would amount to what, do you think?

MS. WILSON:

     I am not familiar with the schedule, perhaps another 500, something like that, so something in the range of 2,000.

THE COURT:

     I think under the circumstances special circumstances do exist. I find them to be that the decision itself is void of any reasoning, and as a direct result, costs were incurred to try to understand the reasoning. This involved disbursements for accountant's fees and time and expense obtaining an expert opinion.

     Further, a second special reason is, on the face of it, there is a decision of a Court of Appeal here, which was not given sufficient respect. Accordingly, I do not think that the applicant should have to bear the costs of obtaining that respect. I award costs in Tariff B, Column 3.

MS. WILSON:

     Thank you, sir. With the expert report as well?

THE COURT:

     Yes, and including disbursements.

MS. WILSON:

     Thank you.

THE COURT:

     Thank you very much for your assistance.