Thakore v. Canada (No. 2), (1989) 23 F.T.R. 212 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: January 23, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 23 F.T.R. 212 (TD)

Thakore v. Can. (1989), 23 F.T.R. 212 (TD)

MLB headnote and full text

S.P. Thakore (plaintiff) v. Her Majesty The Queen in right of Canada as represented by the Minister of Indian and Northern Affairs (defendant)

(T-620-86)

Indexed As: Thakore v. Canada (No. 2)

Federal Court of Canada

Trial Division

Muldoon, J.

January 23, 1989.

Summary:

The Department of Indian and Northern Affairs declared that a teacher abandoned his position when he failed to accept a work assignment and he was therefore dismissed from the public service (Public Service Employment Act, s. 27). The teacher commenced an action for damages against the department, alleging, inter alia, that his position was not abandoned.

The Federal Court of Canada, Trial Division, in a decision reported 23 F.T.R. 194, dismissed the teacher's action, holding that the declaration of abandonment made by the department was lawful. Submissions were to be made to the court respecting costs.

The Federal Court of Canada, Trial Division, in the decision reported below, awarded party and party costs to the Crown, but on a reduced scale because of unacceptable conduct by Crown counsel.

Practice - Topic 7021

Costs - Party and party - Successful party - Exceptions - Conduct - Unacceptable conduct by counsel - The federal Crown declared that a teacher abandoned his position when he failed to accept a work assignment - The teacher's suit for damages was dismissed - The Federal Court of Canada, Trial Division, awarded the Crown party and party costs, but on a reduced scale because of the unacceptable conduct of Crown counsel at trial - The unacceptable conduct included, addressing the court while lounging in chair, wandering while questioning witnesses sometimes with his back turned to the court, carrying a stick, yelling, and making an inflammatory remark to the teacher who appeared without counsel.

Practice - Topic 7035

Costs - Party and party - Crown or government bodies - [See Practice - Topic 7021 above].

Cases Noticed:

Smerchanski v. Minister of National Revenue, [1979] 1 F.C. 801, refd to. [para. 7].

MacMillan Bloedel (Sask.) Ltd. v. Consolboard Inc. (1982), 135 D.L.R.(3d) 192, refd to. [para. 7].

CAE Industries Ltd. and CAE Aircraft Ltd. v. Canada, [1986] 1 F.C. 129; 61 N.R. 19, refd to. [para. 7].

RCP Inc. v. Minister of National Revenue and Deputy Minister of National Revenue for Customs & Excise, [1986] 1 F.C. 485, refd to. [paras. 7, 9].

Lord v. Canada (1988), 14 F.T.R. 9, refd to. [para. 8].

Pongratz v. Minister of National Revenue, [1983] 1 F.C. 77; 44 N.R. 451, folld. [para. 8].

Eli Lilly & Co. v. Makhteshim-Agan (1986), 5 F.T.R. 108; 11 C.P.R.(3d) 145 (T.D.), refd to. [para. 11].

Crila Plastics Indust. v. Ninety-Eight Plastic Trim (1986), 4 F.T.R. 165; 10 C.P.R.(3d) 226; 9 C.I.P.R. 237 (T.D.), refd to. [para. 8].

Indalex Ltd. v. Minister of National Revenue, [1986] 1 C.T.C. 219; 1 F.T.R. 1; 86 D.T.C. 6039 (T.D.), refd to. [para. 11].

Solosky v. Government of Canada, [1977] 1 F.C. 663 (T.D.), affd. [1978] 2 F.C. 632; 22 N.R. 34 (C.A.), affd. [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 13].

Statutes Noticed:

Federal Court Rules, rule 344(1), rule 344(3)(f) [para. 3]; rule 344(3), rule 344(6), rule 346(1.1) [para. 4]; rule 348 [para. 11].

Counsel:

S.P. Thakore, on his own behalf;

E.A. Bowie, Q.C., for the Crown.

EDITOR'S NOTE:

Please note that E.A. Bowie, Q.C., was not the Crown's trial counsel whose unacceptable conduct was referred to in these reasons.

Solicitors of Record:

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This motion was dealt with in writing without the appearance of the parties by Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on January 23, 1989: