Baud Corporation, N.V. v. Brook, [1979] 1 SCR 677

Supreme Court of Canada

Baud Corporation, N.V. v. Brook, [1979] 1 S.C.R. 677

Date: 1979-02-06

Baud Corporation, N.V. (Plaintiff) Appellant;

and

Thomas L. Brook (Defendant) Respondent.

1979: January 24; 1979: February 6.

Present: Laskin C.J. and Martland, Pigeon, Dickson, Estey and Pratte JJ.

MOTION TO VARY JUDGMENT

Judgments and Orders—Judgment of Supreme Court of Canada increasing damages awarded at trial—Computation of interest—Discretion to vary—Supreme Court Act, R.S.C. 1970, c. S-19, s. 52; 1974-75-76, c. 18, s.7—Interest Act, R.S.C 1970, c. I-18, s. 14—Supreme Court Rules, r. 61.

Prince Albert Pulp Co. Ltd. et al. v. Foundation Co. of Canada, Ltd., [1977] 1 S.C.R. 200; Workmen’s Compensation Board et al. v. Greer, [1975] 1 S.C.R. 359, distinguished.

APPLICATION to vary the judgment of this Court[1], given on October 3, 1978, increasing the award of damages to the appellant to $812,500. Judgment varied to provide for interest at the rate of five per cent per annum on the sum of $250,000, awarded at trial, from April 22, 1971, to October 3, 1978, and thereafter at the same rate on the award of $812,500.

P.B.C. Pepper, Q.C., for the plaintiff, appellant.

B.A. Crane, Q.C., for the defendant, respondent.

The judgment of the Court was delivered by

ESTEY J.—Subsequent to the issuance of reasons for judgment by this Court in these proceedings on October 3, 1978, the parties to the appeal were unable to settle the terms of the judgment, the outstanding difference arising between them

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relating to the interest entitlement, if any, of the successful appellant, Baud. The significant dates in these proceedings are as follows:

July 1960: Institution of the first proceedings.

April 22, 1971: Date of judgment at trial granting damages to appellant in the amount of $250,000.

December 28, 1973: Dismissal of appeal by the Court of Appeal of Alberta.

October 3, 1978: Delivery of reasons of the Supreme Court of Canada increasing the damages awarded to $812,500.

The appellant moved in this Court under Rule 61(b)

to re-hear this appeal (that is proceeding #87405 only) but only for the purpose of considering and varying the formal judgment of the Court pronounced October 3, 1978 which remains unsettled and unentered, on the grounds that doubt has arisen … as to the amount of the judgment upon which interest should run from April 22, 1971.

As counsel for the respondent, Thomas L. Brook (the only respondent concerned with this aspect of the matter) agreed on the hearing of this application that interest on the $250,000 awarded at trial should run from April 22, 1971, the only issue left to be disposed of in this Court was whether interest should run on the balance of the judgment, that is to say $562,500, from April 22, 1971.

This application brings into question the interpretation and application of s. 52 of the Supreme Court Act being R.S.C. 1970, c. S-19, s. 52; 1974-75-76, c. 18, s. 7; and s. 14 of the Interest Act of Canada being R.S.C. 1970, c. I-18, s. 14, which are as follows:

SUPREME COURT ACT

Interest

52. Unless otherwise ordered by the Court, a judgment of the Court bears interest at the rate and from the date applicable to the judgment in the same matter of the court of original jurisdiction or at the rate and from the date that would have been applicable to that judgment if it had included a money award.

Prior to the amendment of s. 52 of the Supreme Court Act in 1976, the section read:

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52. If, on appeal against any judgment, the Court affirms such judgment, interest shall be allowed by the Court for such time as execution has been delayed by the appeal.

INTEREST ACT

14. Unless it is otherwise ordered by the court, such interest shall be calculated from the time of the rendering of the verdict or of the giving of the judgment, as the case may be, notwithstanding that the entry of judgment upon the verdict or upon the giving of the judgment has been suspended by any proceedings either in the same court or in appeal.

Section 13 of the Interest Act provides that:

Every judgment debt shall bear interest at the rate of five per cent per annum until it is satisfied.

No specific provision was made in the judgment at trial for interest.

Were it not for the preface in s. 52 “unless it is otherwise ordered by the Court”, the statute would operate so as to cause interest to accumulate from the date of judgment at trial. In its present form, however, the statute gives to this Court a discretion to vary the entitlement to interest and thus the question before this Court is whether or not this discretion should be exercised in the circumstances of this appeal so as to limit the interest which would otherwise accumulate.

In the reasons for judgment given on the disposition of the appeals, to this Court, repeated references were made to the difficulties which flowed by reason of the failure of the appellant Baud to prosecute its appeal assiduously. Recognition was given at the same time to the fact that the respondent Brook and the appellant/respondent Asamera Oil Corporation Ltd. were contributors to many of the delays. On this application, however, we are dealing only with one of three writs issued by the parties, and in that action, Baud was the plaintiff/appellant throughout and Brook was the defendant/respondent throughout. Whatever contribution Asamera and Brook might have made to the lengthy delays encountered in the 18 years when these actions were before the Courts, the applicant Baud in this action had the paramount right of control over the proceedings and their conduct in the Courts. Much of the delay therefore

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in bringing the matter to a conclusion both before and after the institution of this action in 1966 must be laid at the doorstep of the plaintiff/appellant/applicant, Baud. As discussed in the reasons of this Court, this litigation was unusual in its inception and its prosecution. Unpredictable and uncontrollable factors contributed to the magnitude of the ultimate recovery by Baud. As it turned out, the procrastination by Baud during some periods in the course of the litigation in fact increased its ultimate recovery. For these reasons, it appears to me that this application is one where it would be appropriate for the exercise by the Court of the discretion granted under s. 52 by limiting the interest accrual between the date of the judgment at trial and the delivery of reasons for judgment of this Court to the sum of $250,000 as awarded by the learned trial judge and to allow the accumulation of interest on the total award granted in this Court from the period after October 3, 1978.

In disposing of this application, it would perhaps be helpful to make two observations. By reason of the terminology adopted by Parliament in s. 52 as enacted in 1976, successful counsel need not invoke Supreme Court Rule 61 if in the circumstances of the proceedings the automatic operation of the statute is appropriate. Where the circumstances arising in a proceeding may otherwise invite the intervention of the Court by the exercise of its discretion under s. 52, an application as made in these proceedings is appropriate.

In the course of argument, reference was made to the application in Prince Albert Pulp Company Ltd. et al. v. Foundation Company of Canada, Ltd.[2], for a re-hearing and variation of judgment, which application was not accepted by the Registrar on April 1, 1977, for the reason that the judgment of this Court had been settled and entered and hence Rule 61 was inapplicable. Litigation thereupon ensued in the Courts of the Province of Saskatchewan to determine questions relating to interest on the judgment, and application for

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leave to appeal to this Court was made and was dismissed on November 6, 1978. Those proceedings are therefore quite different from the application now brought to this Court in these proceedings.

It may also be helpful to observe that the judgment of this Court in Workmen’s Compensation Board et al. v. Greer[3] was given with reference to a judgment delivered at a time prior to the 1976 enactment of s. 52 when that section was in form as set out above.

For these reasons, I would vary the judgment of this Court by adding thereto an award of interest at the rate of five per cent per annum on the amount of $250,000 to be computed from and after the date of delivery of judgment at trial on April 22, 1971, to October 3, 1978; and thereafter at the rate of five per cent per annum on the sum of $812,500. Success being divided, I do not think that costs should be awarded in this application.

Judgment accordingly.

Solicitor for Baud Corporation, N.V. and Sea Oil & General Corporation: P.B.C. Pepper, Toronto.

Solicitors for Asamera Oil Corporation and Thomas L. Brook: MacKimmie, Matthews, Calgary.