A-47-78 
Federal Business Development Bank (Respond-
ent) (Plaintiff) 
v. 
The Ship Saturna Maid and Kenneth Kinnaird 
(Appellants) (Defendants) 
Court of Appeal, Jackett C.J., Urie J. and Kelly 
D.J.—Vancouver, March 29, 1979. 
Practice — Taxation of costs — Appeal from Trial Divi
sion's confirmation, under Rule 1007(8), of a taxation disal
lowing marshal's bill of costs — Item in dispute computed in 
accordance with British Columbia Supreme Court Rules which 
allowed a sheriff a percentage of sum realized — Decision to 
disallow concerned with issue of marshal receiving fee allowed 
sheriff — Only one Court and one class of officer to imple
ment its decisions — Rule 1007(8) only for correction of errors 
in taxation — Court's discretionary power exercised pursuant 
to s. 9 of Tariff A — Trial Division judgment and the taxation 
it dealt with overturned, and matter referred to District 
Administrator for re-taxation — Federal Court Rule 1007(8), 
Tariff A, ss. 7, 9 — Federal Court Act, R.S.C. 1970 (2nd 
Supp.), c. 10, s. 13(4). 
APPEAL. 
COUNSEL: 
D. E. McEwen for respondent (plaintiff). 
T. P. O'Grady, Q.C. for appellants (defend-
ants). 
SOLICITORS: 
Ray, Wolfe, Connell, Lightbody & Reynolds, 
Vancouver, for respondent (plaintiff). 
T. P. O'Grady, Q.C., Victoria, for appellants 
(defendants). 
The following are the reasons for judgment 
delivered orally in English by 
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division confirming the taxation 
of a marshal's bill of costs on a review thereof 
under Rule 1007(8). 
The only item in dispute is a claim for $4,000 
computed in accordance with paragraph 2(c) of 
Schedule 2 of Appendix C to the British Columbia 
Supreme Court Rules, which allowed to a sheriff 
10 per cent of the sum realized in respect of 
"Arrest or Execution on Goods and Chattels". 
This item was claimed by virtue of Tariff A in the 
Federal Court Rules which provides inter alia 
under the heading "Sheriff": 
7. A sheriff may take and receive for a service rendered by 
him the fee or allowance permitted by law for a like service in 
the superior court of the province in which the service was 
rendered. 
The claim was disallowed, as such, by reason of 
the decision of the Trial Division in the Xanadu 
case (T-3709-73) (August 9, 1974) where Collier 
J. expressed the opinion, in effect, that section 7 
has no application where a sheriff is claiming in 
respect of duties performed by him pursuant to a 
Rule in which the duty is expressed to be imposed 
on a "marshal". In my view, section 7 applies to a 
sheriff when he is claiming in respect of the 
performance of duties whether the Rule imposing 
the duties refers to him as "sheriff" or "marshal". 
Historically, the admiralty jurisdiction of the 
Federal Court can be traced back to the High 
Court of Admiralty in England in which the offi
cer whose duty it was to carry out decisions of the 
Court was known as a "marshal". Otherwise, the 
constitution of the Court is patterned on that of 
earlier courts in which the Court's decisions were 
carried out by officers known as "sheriffs". For 
obvious reasons, both terms have been carried into 
the Federal Court Act and Rules in a manner that 
is somewhat lacking in a logical consistency. 
However, by virtue of section 13(4) of the Act, 
"Every sheriff of the Court is ex officio a marshal 
of the Court ...". In my view, this means quite 
simply that "Every sheriff . .. is ... a marshal"'. 
In other words, there is only one court and one 
class of officer to implement its decisions. Duties 
that are, in terms, assigned to a "marshal" are, in 
my opinion, in law, assigned to a sheriff. When, 
therefore, a sheriff is authorized to "take ... for a 
service rendered by him" a certain fee, the author
ity is to take such fee whether the service is 
rendered by him under a provision referring to him 
as a sheriff or a provision referring to him as a 
marshal. I should be sorry to reach any other 
' In my view "ex officio" is not an adjective by which the 
provision makes a sheriff an "ex officio marshal" but is an 
adverb indicating that being a marshal is incidental to being a 
sheriff. Compare Black's Law Dictionary where "ex officio" is 
defined to mean "... by virtue of the office; without any other 
warrant or appointment than that resulting from the holding of 
a particular office." 
result as I regard section 7 as being of fundamen
tal importance. When different fees are fixed by 
provincial authorities for the same class of services 
rendered in different provinces, it is to be assumed 
that there are reasons therefor and sheriffs should 
not be expected to perform such services for the 
Federal Court without being paid what they would 
be paid if they had performed the services for the 
provincial courts. 
The question does not arise on this appeal as to 
how the sheriff's bill of costs would have been 
taxed if section 7 had been applied. Inasmuch as 
the taxation proceeded on the basis that section 7 
did not apply, in my view, the matter should go 
back to the District Administrator for a complete
ly new taxation. 
With regard to a taxation where section 7 is 
invoked, it should not be overlooked that section 9 
provides a safeguard against absurd results. That 
section reads: 
9. Notwithstanding sections 7 and 8, the fee or allowance or 
fee for realization on execution, or "poundage", that may be 
taken and received by a sheriff may be increased or decreased 
in the discretion of the Court on the application thereto of any 
interested party. 
However, if there is to be an application under 
section 9, it should, I suggest, be made before the 
new taxation takes place, as an order made there-
under would be one of the factors on which the 
taxation would be based and the purpose of the 
review under Rule 1007(8) is to correct errors in 
the taxation and not to afford an opportunity to a 
party to seek to have the Court exercise its discre
tionary powers 2. 
I am, therefore, of opinion that the appeal 
should be allowed, that the judgment of the Trial 
Division and the taxation of the sheriff's costs that 
is the subject thereof should be set aside and that 
the matter should be referred back to the District 
Administrator for re-taxation of the sheriff's 
account. 
* * * 
URIE J. concurred. 
* * * 
KELLY D.J. concurred. 
2 Cf Smerchanski v. M.N.R. [1979] 1 F.C. 801. 
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.