Date: 20021122
Docket: A-527-99
Neutral citation: 2002 FCA 464
Present: RICHARD C.J.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
DUPONT CANADA INC.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on November 22, 2002
REASONS FOR ORDER BY: RICHARD C.J.
CONCURRED IN BY: EVANS J.A.
SHARLOW J.A.
Date: 20021122
Docket: A-527-99
Neutral citation: 2002 FCA 464
Present: RICHARD C.J.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
DUPONT CANADA INC.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
RICHARD C.J.
[1] On April 12, 2001, this Court allowed the appellant's appeal from a judgment of the Tax Court of Canada, with costs. On June 17, 2002, the appellant brought a motion in writing for an order amending the judgment of the Court of Appeal to include costs in the Tax Court. That motion was denied on August 30, 2002 with written reasons.
[2] The appellant brings a motion, filed on October 7, 2002, to vary or set aside the order of August 30, 2002 and award costs, in the Tax Court of Canada as well as the Federal Court of Appeal, to the appellant.
[3] The appellant relies on Rule 399(2)(a), asserting that it has recently learned of an unreported order of the Supreme Court of Canada in Spire Freezers Limited et al. v. Her Majesty the Queen, dated September 24, 2001, in which an order allowing an appeal with costs was amended to refer to costs in the courts below.
[4] Rule 399(2)(a) permits an order to be varied "by reason of a matter that arose or was discovered subsequent to the making of the order". Discovery of an unreported decision that might have provided some support for an argument that was rejected is not a new matter within the meaning of that rule.
[5] In this Court, costs are discretionary, although costs of an appeal or application for judicial review are normally awarded to the successful party. However, there is no practice in this Court to automatically award costs in the lower courts.
[6] The motion will be dismissed with costs.
"J. Richard"
Chief Justice
"I agree
John M. Evans J.A."
"I agree
K. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-527-99
STYLE OF CAUSE: DUPONT CANADA INC. v. HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER: RICHARD C.J.
CONCURRED IN BY: EVANS J.A.
SHARLOW J.A.
DATED: November 22, 2002
WRITTEN REPRESENTATIONS BY:
Alan M. Schwartz, Q.C. FOR THE APPELLANT
Catherine Rosebrugh
SOLICITORS OF RECORD:
Alan M. Schwartz, Q.C. FOR THE APPELLANT
Catherine Rosebrugh
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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