[1] This is an appeal from a decision of O'Keefe J. ((2002) 222 F.T.R. 152) whereby he dismissed the appellant's motion appealing the decision of Prothonotary Aronovitch awarding the respondent $500 in costs. The appellant did not appeal the Prothonotary's decision to strike out its statement of claim.

[2] This appeal raises two questions of law that have yet to be addressed by this Court: 1) whether a prothonotary has jurisdiction under Rule 221 to hear a motion to strike out a statement of claim in which the amount sought exceeds $50,000, and 2) whether an order by a prothonotary as to costs is an order with respect to a question vital to the final issue of the case, resulting in a motions judge exercising his discretion de novo when sitting in appeal of that order.

[3] I will deal first with the second issue. The motions judge was of the view that as costs were the final issue of the case, he should exercise his discretion de novo. With respect, I disagree.

[4] The test developed in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) and recently reformulated in Merck & Co. v. Apotex Inc., (2003 FCA 488) requires the motions judge to first determine whether an order as to costs raises a question vital to the final issue of the case. The test of "vitality" is said to be "a stringent one" (Merck, supra, at para. 22). It cannot be said that an order made with respect to costs after the case has been finally resolved on its merit one way or the other, is "vital" within the meaning of the test. Such orders are purely discretionary. They are ancillary to the real questions at issue in the case and they have no impact on the resolution of those issues. Like Gibson J. in Mongague Industries Inc. v. Canmec Ltée, 2001 FCT 72 at para. 25 and Evans J. (as he then was) in Glaxo Group Ltd. v. Novopharm Ltd., (1999) 3 C.P.R. (4^th) 333 at para. 16 (F.C.T.D.), I am of the view that a prothonotary's order as to costs is not reviewable de novo and can only be disturbed by a motions judge in appeal if it is based on a wrong principle or upon a misapprehension of the facts.

[5] The second issue involves the interrelationship between subsections 12(1) and (3) of the Federal Court Act, Rule 50(1) and (2) of the Federal Court Rules and Rule 221(1) of these Rules. These provisions read as follows:

Federal Court Act

12. (1) The Governor in Council may appoint as prothonotaries of the Federal Court any fit and proper persons who are barristers or advocates in a province and who are, in the opinion of the Governor in Council, necessary for the efficient performance of the work of that court that, under the Rules, is to be performed by them.

...

(3) The powers, duties and functions of the prothonotaries shall be determined by the Rules.

Federal Court Rules, 1998

50. (1) A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion

(a) in respect of which these Rules or an Act of Parliament has expressly conferred jurisdiction on a judge;

(b) in the Court of Appeal;

(i) in an action referred to in subsection (2), or

(ii) in respect of a claim referred to in subsection (3);

(d) to hold a person in contempt at a hearing referred to in paragraph 467(1)(a);

(e) for an injunction;

(f) relating to the liberty of a person;

(g) to stay, set aside or vary an order of a judge, other than an order made under paragraph 385(a), (b) or (c); (h) to stay execution of an order of a judge;

(i) to appoint a receiver;

(j) for an interim order under section 18.2 of the Act;

(k) to appeal the findings of a referee under rule 163; or

(l) for the certification of an action as a class action.

(2) A prothonotary may hear an action exclusively for monetary relief, or an action in rem claiming monetary relief, in which no amount claimed by a party exceeds $50,000 exclusive of interest and costs.

...

221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it

(a) discloses no reasonable cause of action or defence, as the case may be,

(b) is immaterial or redundant,

(d) may prejudice or delay the fair trial of the action,

(e) constitutes a departure from a previous pleading, or

(f) is otherwise an abuse of the process of the Court,

and may order the action be dismissed or judgment entered accordingly.

Loi sur la Cour fédérale

12. (1) Le gouverneur en conseil peut nommer protonotaires de la Cour fédérale tous avocats remplissant, à son avis, les conditions voulues pour l'exécution des travaux de celle-ci qui, aux termes des règles, incombent à cette catégorie de personnel.

[...]

(3) Les pouvoirs et fonctions des protonotaires sont fixés par les règles.

Règles de la Cour fédérale (1998)

50. (1) Le protonotaire peut entendre toute requête présentée en vertu des présentes règles - à l'exception des requêtes suivantes - et rendre les ordonnances nécessaires s'y rapportant :

a) une requête pour laquelle un juge a compétence expresse en vertu des présentes règles ou d'une loi fédérale;

b) une requête devant la Cour d'appel;

c) une requête pour obtenir un jugement sommaire, sauf s'il s'agit d'un jugement sommaire :

(i) dans une action visée au paragraphe (2),

(ii) à l'égard d'une réclamation visée au paragraphe (3);

d) une requête pour obtenir une condamnation pour outrage au tribunal à la suite d'une citation pour comparaître ordonnée en vertu de l'alinéa 467(1)a);

e) une requête pour obtenir une injonction; f) une requête concernant la mise en liberté ou l'incarcération d'une personne;

g) une requête pour annuler ou modifier l'ordonnance d'un juge ou pour y surseoir, sauf celle rendue aux termes des alinéas 385a), b) ou c);

h) une requête pour surseoir à l'exécution de l'ordonnance d'un juge;

i) une requête visant la nomination d'un séquestre judiciaire;

j) une requête pour obtenir des mesures provisoires en vertu de l'article 18.2 de la Loi;

k) une requête pour en appeler des conclusions du rapport d'un arbitre visée à la règle 163;

l) une requête en autorisation d'une action comme recours collectif..

(2) Le protonotaire peut entendre toute action visant exclusivement une réparation pécuniaire ou toute action réelle visant en outre une réparation pécuniaire dans lesquelles chaque réclamation s'élève à au plus 50 000 $, à l'exclusion des intérêts et des dépens.

[...]

221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :

a) qu'il ne révèle aucune cause d'action ou de défense valable;

b) qu'il n'est pas pertinent ou qu'il est redondant;

c) qu'il est scandaleux, frivole ou vexatoire;

d) qu'il risque de nuire à l'instruction équitable de l'action ou de la retarder;

e) qu'il diverge d'un acte de procédure antérieur;

f) qu'il constitue autrement un abus de procédure.

Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence.

[6] The intention of Parliament cannot be clearer. The office of prothonotary is created to ensure "the efficient performance of the work of the Court that, under the Rules, is to be performed by them" (subsection 12(1) of the Act) and the description of the work of the Court that can be performed by the prothonotary is to be found in the Rules (subsections 12(1) and (3) of the Act).

[7] The role of prothonotaries in the Federal Court has been described by Chief Justice Isaac in Aqua-Gem, and his description has most recently been reaffirmed by the Court in Merck (supra, at para. 22). I wish to quote here from the reasons of Isaac C.J. in Aqua-Gem:

Doubtless, in providing for the office of the Registrar or Master in the Exchequer Court and of the prothonotary in this Court, Parliament was mindful of the pre-trial and post-judgment support which the master system provided for superior court judges in the judicial systems of England and Ontario, both of which made extensive use of these judicial officers.

In his Hamlyn Lectures (published under the title The Fabric of English Civil Justice, London: Stevens & Sons, 1987), Sir Jack Jacob, Q.C., himself a former senior master of the High Court of Justice in England, sketched the historical development of the master system in England and the manner of its operation. The following passage at pages 110-111 is instructive of the historical evolution of that system:

The most striking feature of the English pre-trial process is that, save for a few exceptions, the proceedings are conducted not before a judge but before a junior judicial officer, called the Master or Registrar. Before 1837, the judges of the three superior common law courts themselves dealt with pre-trial applications, which were then comparatively few in number and in variety. In 1837, Parliament abolished a great number of administrative and a few quasi-judicial offices and in their place created the Masters of the three Common Law Courts to assist the judges in their pre-trial work. In 1867, Parliament took the bold leap forward to transform the position of the Master from being an assistant to the judge into becoming a separate, distinct and independent judicial officer. This was achieved by enabling the judges to make rules of court empowering the Masters to transact all such business and exercise all such authority and jurisdiction as may be transacted and exercised by the judge in Chambers, except in specified matters and proceedings. Needless to say, the requisite rules of court were immediately made and they have continued with considerable expansion to this day. They operate to confer on the Masters original jurisdiction in respect of the matters and proceedings that come before them. For these purposes in the High Court, the Master is the equivalent of the judge in Chambers and his decision, order or judgment is made or given in his capacity as "the court" itself.

The jurisdiction of the Masters, which has from time to time since their creation been greatly expanded, is very extensive indeed and covers almost the entire range of pre-trial proceedings, with the important exception of applications for an injunction, other than in agreed terms, and it also extends to almost all post-judgment proceedings. They have power to make final as well as interlocutory orders and to give final judgments which are as operative and enforceable and which must be complied with as if made or given by a judge.

[my emphasis]

[8] The jurisdiction of the prothonotaries, as that of the Masters in the English system, has therefore been greatly expanded with time and "covers almost the entire range of pre-trial proceedings, with the important exception of applications for an injunction .... and it also extends to almost all post-judgment proceedings". That jurisdiction is determined by the Rules Committee established under section 45.1 of the Act, which is thus given the exceptional authority to empower the prothonotaries "to transact all such business and exercise all such authority and jurisdiction as may be exercised by the judge in Chambers, except in specified matters and proceedings".

[9] Rule 50(1) has established the principle that a prothonotary has authority with respect to "any motion" under the Federal Court Rules "other than" motions expressly identified in Rule 50(1). This is a wide authority indeed and unless a motion falls under one of the headings of Rule 50(1), it may be entertained by a prothonotary. Rule 50(1) has been drafted carefully and does not grant prothonotaries any authority with respect to actions. It is Rule 50(2) which grants prothonotaries authority with respect to actions and the Rule expressly limits that authority to actions that are taken exclusively for monetary relief, or in rem actions claiming monetary relief, in which no amount claimed by a party exceeds $50,000 exclusive of interest and costs. The distinction between "motion" and "action" was clearly in the mind of the regulator, and had the latter wished to exclude from the authority of the prothonotary motions made in the context of actions in which the amount claimed exceeded $50,000, it would certainly have done it. There is therefore no doubt, in my view, that a prothonotary has jurisdiction under Rule 50(1) to decide a motion to strike an action made under Rule 221 whatever the amount claimed in the action.

[10] Returning to the facts of this case, the prothonotary had authority to strike out the statement of claim even though the amount sought exceeded $50,000. The prothonotary had also authority to make an order as to costs with respect to the striking out of the statement of claim. The order as to costs is not an order vital to the final issue of the case. It ought not be disturbed by a motions judge unless it were clearly wrong, in the sense that the exercise of the discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts. Even though in the case at bar the motions judge applied the wrong standard of review, he nevertheless necessarily implies by his decision that he has reached the view that no reviewable error was committed by the prothonotary. No reason to interfere with that finding has been shown.

[11] The appeal should be dismissed. I would award costs in favour of the respondent in the amount of $300.

"Robert Décary"

J.A.

"I agree.

J. Edgar Sexton, J.A."

"I agree.

K. Sharlow, J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-363-02

APPEAL FROM AN ORDER OF MR. JUSTICE O'KEEFE OF THE FEDERAL COURT, DATED MAY 24, 2002 IN FILE T-1626-01

STYLE OF CAUSE: FIRST CANADIANS' CONSTITUTION DRAFT COMMITTEE, THE UNITED KOREAN GOVERNMENT (CANADA) v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: MARCH 3, 2004

REASONS FOR JUDGMENT: DÉCARY J.A.

CONCURRED IN BY: SEXTON J.A., SHARLOW J.A.

DATED: MARCH 5, 2004

APPEARANCES:

Mr. Kyu-Bom Hahn

APPELLANT

Ms. Monika Lozinska

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Kyu-Bom Hahn

Ottawa, Ontario

APPELLANT

Morris Rosenberg,

Deputy Attorney General of Canada

Ottawa, Ontario

FOR THE RESPONDENT

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First Canadians' Constitution Draft Committee v. Canada, 2004 FCA 93

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2004 FCA 93