Page images

1904 tiff, section 38, therefore, plainly only refers to costs Judgment. up to trial and entry of judgment.

RICHARDS,J. It must be assumed, I think, that it was the intention

of the Legislature to treat the parties equally as to their rights to costs. But that can only be carried into effect by holding that the 25 per cent. limit in section 37 only refers to costs up to judgment. If it goes to the costs of the reference also, then the plaintiff is not as favourably treated by the Act as the defendant is, in the matter of


The defendant has it in his power to get the benefit of the limit provided by section 37. He can do so by paying off the judgment as soon as it is entered or pronounced. Up to that stage there is a dispute to be decided. After that stage the defendant has nothing but time to gain by letting the proceedings go on in the master's office, while much may be lost to the plaintiff if he has to pay his solicitor the costs of the reference and cannot recover them. To hold that the plaintiff must conduct the reference at his own expense is to put him in a position where, if his claim is small, it may be all eaten up by the reference, and to encourage the defendant to delay payment, while the prospect of having to pay the costs of the reference would on the other hand be an incentive to payment. The Act is intended to aid the mechanic or wage earner. But to hold that he must pay his own costs of the reference, if the 25 per cent. limit is not large enough to include them as well as his costs up to judgment, is to hold oppressively so far as he is concerned.

It is true that sub-section (d) of section 31 says that, where proceedings are taken in the special manner provided by section 31 and a sale is had, the Judge may add to the claim of the person conducting the sale his actual disbursements. But that provision only applies to pro

ceedings under section 31. There is no such provision 1904 of the Act as to cases conducted by the ordinary methods. Judgment. It is argued that section 39 of the Act must control the RICHARDS,J. position. It says that the costs allowed the solicitor must not exceed what would have been incurred if the least expensive course had been taken. But that argument to be valid must take the entire expense of a proceeding, including a sale, under section 31, and compare it with the entire expense of a proceeding by the ordinary proce dure, including a sale, and shew that the former is the less expensive. If only the expense of the sale proceedings were to be considered, that under section 31 would necessarily be the less expensive.

But the counsel fees that have to be incurred in a proceeding under section 31 are likely to be so much greater than under the ordinary method, that the whole expenses under section 31 up to sale are almost certain to be considerably greater than that under the ordinary procedure, even with costs of the reference taxed irrespective of the alleged 25 per cent. limit.

There has been only one case dealt with under section 31 as far as I am aware: Robock v. Peters, 13 M.R. 124. It was only necessary to see the array of counsel that the special procedure under section 31 brought into Court in that case to realize that the ordinary method is almost sure to be the less expensive.

I think the appeal should be dismissed with costs.

PERDUE, J.-This is an appeal from an order of the Chief Justice dismissing an appeal against the taxation of the plaintiffs' costs.

The action was brought to enforce liens under The Mechanics' and Wage Earners' Lien Act, R.S.M. 1902, c. 110. At the trial judgment was given in favour of the plaintiffs declaring that Humphries was entitled to $240.60 and Philp, another plaintiff, to $81.65. The


costs of the plaintiffs, down to and including the trial, Judgment. were taxed at the sum of $190.16 and inserted in the PERDUE, J. judgment. The defendant was ordered to pay the above three sums, aggregating $512.41, into court on or before 11th December, 1903, being a date one week after the judgment was drawn up and settled. The judgment provided that in case the defendant should make default in the payment aforesaid the lands, machinery, material, &c., should be sold "with the approbation of a judge of this Court and that the purchase money be paid into Court to the credit of this action and that all proper parties do join in the conveyances as the said Judge shall direct." The judgment then proceeds to order "that for the purpose of such sale it be referred to the master of this Court in Winnipeg and that all necessary enquiries be made, parties added, accounts taken, costs taxed, and proceedings had by the said master for the sale of the said property." It was then provided that the purchase money should be applied in payment of the several claims mentioned in the first schedule to the judgment, being the two claims of Humphries and Philp above mentioned, with subsequent interest and subsequent costs to be computed and taxed by the Master.

The lands were sold under the direction of the Master and the purchase money paid into Court. The plaintiffs brought in a subsequent bill of costs covering the proceedings subsequent to the judgment which bill was taxed and allowed at the sum of $229.30, inclusive of disbursements. The costs up to judgment and the subsequent costs together amounted to $419.16, of which $228.75 was costs other than disbursements, while the total amount of the liens enforced amounted to only $322.25.

The defendant appealed from the taxation of the plaintiffs' subsequent bill of costs, claiming that under the Act the plaintiffs were only entitled to costs to an amount


equal to twenty-five per cent. of the amount of the judg ment, besides actual disbursements, and that the amount Judgment. of costs allowed far exceeded this.

The Act provides that liens created under its provisions may be realized by actions in the Court of King's Bench according to the ordinary procedure of that Court, excepting where the same is varied by the Act (s. 27). The action may be tried at any regular sittings of the Court for the trial of actions, or, in case the amount involved is less than one thousand dollars, it may be tried by a local judge of the Court (s. 29). The trial referred to in section 29 is an ordinary trial according to the usual procedure, at which the judge may pronounce the ordinary judgment to enforce a lien, referring the cause to the Master to take accounts, to make the necessary enquiries, to add parties, tax costs and sell the land according to the general directions.

By section 31 a summary form of disposing of the suit is provided. By this section the trial may be brought on as soon as the defence is in, or as soon as the time for delivering the defence is up. Under the procedure provided by this section the judge is to summarily dispose of the whole matter, he taking the accounts himself, fixing the claims of the parties, giving the necessary relief to all persons interested and embodying all the results in his judgment. Where a sale is directed under this procedure, it is to take place under the direction and approbation of the judge, who shall make a report on the şale and direct to whom the moneys derived therefrom are to be paid. By sub-section (d) of section 31, the judge may add to the claim of the person conducting the sale the actual disbursements in connection therewith.

By section 37 it is provided that "the costs of the action awarded in any action under this Act, by the Judge or Local Judge trying the action, to the plaintiffs and suc


1904 cessful lien holders, shall not exceed in the aggregate an Judgment. amount equal to twenty-five per cent. of the amount of PERDUE, J. the judgment besides actual disbursements, and shall be

in addition to the amount of the judgment, and shall be apportioned and borne in such proportion as the judge or local judge who tries the action may direct."

The Act is so framed that it is very difficult to ascertain what was the real intention of the Legislature. After a careful study of the various clauses I have come to the following conclusions:

A plaintiff seeking to enforce a lien may do so by an action in the Court of King's Bench, following the ordinarv procedure in actions in that Court. Nothing in the Act ousts the general jurisdiction of the Court to enforce a lien. The plaintiff may, instead of following the ordinary procedure, adopt the summary procedure provided in sections 31 and 32 of the Act. Where this latter procedure is adopted, the judge or local judge trying the action adjusts at the hearing the rights of all parties interested, takes the accounts and fixes the amount of the costs to be paid, embodying all the findings and results in a judg ment, the form of which is provided by the Act. The judgment in such case contains a schedule in which the amounts allowed by the judge for liens and also the amounts allowed for costs are set out. The expression in section 37, "costs of the action awarded in any action under this Act by the judge or local judge trying the action," refer in my opinion to the costs up to and including the trial and mean the costs which are allowed by the judge at the hearing and entered in the judgment. (See Gearing v. Robinson, 19 P.R. 192). Where the summary procedure under section 31 is adopted, the judge or local judge gives the directions as to the sale, makes the report on sale and adds to the claim of the person con

« PreviousContinue »