Canada v. Bains, docket T-774-97

Date: 19980729

Docket: T-774-97

BETWEEN:

     HER MAJESTY THE QUEEN,

     Plaintiff,

     - and -

     RICHARD BAINS,

     Defendant.

     REASONS FOR ORDER AND ORDER

MR. JOHN A. HARGRAVE,

PROTHONOTARY

[1]      The Plaintiff, as judgment creditor, seeks to amend a 27 February 1998 judgment to take into account a bookkeeping error in its account with the Defendant, a judgment debtor, the error amounting to $1,187.00 in an account of just over $9,000.00.

[2]      Once an order is signed it is final, subject to limited exceptions set out in Rule 397. Where an order, such as my order of 27 February 1998, is made without reasons, the order may only be reconsidered, pursuant to section 397(1)(b) of the Federal Court Rules, where some matter should have been dealt with and has been overlooked or accidently omitted, or under section 397(2), by which a clerical mistake, error or omission, may be corrected by the Court.

[3]      Rule 337(5), of the former Federal Court Rules, is similar to the present Rule 397(1). The Federal Court of Appeal held, in Boateng v. Canada (1990), 112 N.R. 318, that Rule 337(5) contemplated an oversight on the part of the Court, not an oversight by a party.

[4]      The operation of Rule 397(2), by which clerical mistakes, errors or omissions may be corrected by the Court, is a little more involved. I am not aware of case law specifically limiting such clerical oversights to those of only a court. Indeed, in some instances courts have allowed an error by counsel to be corrected under similar rules: here I would refer to, for example, In re Earl of Inchcape: Craigmyle v. Inchcape, [1942] 1 Ch. 394, in which counsel accidently omitted to ask the court to deal with a particular aspect of costs. Now from this one might conclude that a clerical bookkeeping mistake, on the part of a plaintiff, might easily be corrected. However, Mr. Justice Morton, as he then was, in the Earl of Inchcape, puts a limit on the wholesale correction of errors under the rubric of clerical mistake. He notes that if a judge's attention is directed to a point and, considering the point, he decides it, there can be no alteration of a judgment unless the judge has made a manifest error:

[5]      In the present instance, the error is not of the Court's making. The amount of the judgment in default of defence followed from the accounting provided to the Court by the Plaintiff. It appears that a mistake relied upon was that of two negative bookkeeping entries, each of $1,187.00, one immediately following the other, where there should only have been one entry. The Ontario High Court in Goodwin Investments Ltd. v. Abraham (1976), 1 C.P.C. 258 held that a mistake which might have been avoided through reasonable diligence is not a ground for the variation of an order once judgment has been entered.

[6]      The B.C. Supreme Court commented upon the accidental slip rule and its application to dollar amounts in a default judgment in Bank of Nova Scotia v. Ellis (1981), 30 B.C.L.R. 397. In that case there were accidental slips and gross errors in the default judgment which Mr. Justice Selbie felt went beyond a mere slip. However, more important, he touches upon several cases dealing with accidently slips or errors in the amounts set out in judgments. He concluded that the cases merely showed that whether or not a judgment should be amended by the Court, as a mere slip, depended upon the facts in each case.

[7]      In the present instance what initially occurred was a slip on the part of the Plaintiff a double entry of a figure, in calculating refunds credited to the judgment debtor for the delivery of grain. The calculation was presumably checked to some degree, or ought to have been checked, before putting affidavit material to the court as the basis for the amount of the default judgment. Had the Plaintiff been diligent the error ought to have been picked up initially, before the default judgment was applied for or, certainly, earlier than some four and a half months after the fact. This delay, in finding the error and in acting upon it, concerns me to the extent that it is my view that I ought not to exercise my discretion and allow what is in effect an amendment of a default judgment on the basis of material which presumably was available when the application for default judgment was made.

ORDER

[8]      The motion of the Plaintiff, as a judgment creditor, to amend the judgment in default of defence is denied.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

Vancouver, British Columbia

July 29, 1998

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-774-97

STYLE OF CAUSE:          HER MAJESTY THE QUEEN

                     v.

                     RICHARDS BAINS

MOTION DEALT WITH IN WRITING WITHOUT

APPEARANCE OF COUNSEL.

REASONS FOR ORDER AND ORDER OF

MR. JOHN A. HARGRAVE, PROTHONOTARY

dated July 29, 1998

WRITTEN SUBMISSIONS BY:

     Ms. Margaret D. Redmond      for Plaintiff

SOLICITORS OF RECORD:

     Morris Rosenberg          for Plaintiff

     Deputy Attorney General

     of Canada