Kuwait Airways Corp. v. Iraq

LeBel J. — The respondent, mis en cause, Bombardier Aerospace has made a motion under r. 47 of the Rules of the Supreme Court of Canada, SOR/2002-156, to resolve an issue relating to the taxation of costs in the appeal. It also asks for an extension of time to serve and make this motion. The appellant, Kuwait Airways Corporation, which succeeded in this appeal (see Kuwait Airways Corp. v. Iraq, 2010 SCC 40, [2010] 2 S.C.R. 571), takes no position on this motion and defers to this Court’s decision.

In its judgment, this Court allowed the appeal of Kuwait Airways Corporation with costs throughout. The appellant’s bill of costs was filed for taxation against the Republic of Iraq and Bombardier Aerospace, both of which were respondents in this Court. Prior to the Court’s judgment, Bombardier Aerospace had made no representations with respect either to its status in this Court or to the conclusions that might be granted in a judgment of the Court, which would have been an appropriate precaution to take.

Nevertheless, although Bombardier Aerospace was designated a respondent under this Court’s rules of procedure, it did not participate in the proceedings before the Court. In these circumstances, to infer that the Court intended to also award costs against Bombardier Aerospace would be to unduly expand the scope of its conclusion. The Court awarded costs to the appellant without specifying that the award was against all the respondents. Its judgment necessarily concerned the Republic of Iraq alone, and not Bombardier Aerospace, which did not participate in the proceedings before it, and the Court had no reason to award costs against Bombardier Aerospace in the circumstances.

Bombardier Aerospace could of course have exercised greater diligence regarding this issue of costs. However, discussions about it have been under way for several months in various forms and with various people at the Court. What is more, the appellant has not raised the lateness of this proceeding. It would accordingly be inappropriate to deny the extension of time sought by Bombardier Aerospace.

For these reasons, the motion of the respondent, mis en cause, Bombardier Aerospace is granted in part in order to extend the time to serve and file the motion and to declare that the award of costs does not apply to the respondent, mis en cause, Bombardier Aerospace and that the bill of costs may not be taxed against it. Costs will not be awarded on this motion.