Date: 20060412
Docket: T-2273-01
Citation: 2006 FC 476
Ottawa, Ontario, April 12, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
PHIL SHTUTMAN
Plaintiff
and
OCEANE MARINE SHIPPING, INC.
and
MAERSK CANADA INC.
and
A.P. M0LLER
and
AKTIELSELSKABET DAMPSKIBSSELSKABET SVENDBORD (SVENDBORG)
and
DAMPSKIBSSELSKABET AF 1912, AKTIESELSKAB (1912)
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "DRAG0R MAERSK"
and
THE SHIP "DRAG0R MAERSK"
and
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIP "MAERSK PERTH"
and
THE SHIP "MAERSK PERTH"
Defendants
REASONS FOR ORDER AND ORDER
[1] These reasons relate to an assessment of costs which I was asked to undertake by counsel for the parties at the end of the trial of the plaintiff's action. On the 31st day of October, 2005, I dismissed the plaintiff's action with costs.
[2] For the purposes of this assessment of costs the only defendants entitled to costs are 1912 and Svendborg being the only remaining defendants claimed by counsel for the plaintiff.
[3] After hearing the parties via telephone conference call, agreement was reached on all but one of the objections raised by counsel for the plaintiff to the proposed bill of costs which had been filed with the Court by the remaining defendants.
[4] This issue was whether the defendants' offer to settle entitled the defendants to receive double costs pursuant to rule 420 of the Federal Courts Rules, 1998, as that rule stood on October 31, 2005. I say this because rule 420 was amended on November 17, 2005.
[5] I list following agreements reached by the parties.
1. Disbursements were agreed at the sum of $5,762.52 by the elimination of government fees of $100 purportedly paid to the Republic of Guinea;
2. Counsel for the plaintiff objected to the fees claimed for services of two counsels requested in several items of Tariff B, namely items 13(a), 13(b), 14(a) and 14(b). Counsel for the defendants said he would be agreeable to dropping his request for second counsel if some agreement could be reached to award higher units in Column IV with respect to counsel fees being sought.
After some give and take by both parties, agreement was reached on the following items:
- item 13(a) at 6 units
- item 13(b) at 8 units
- item 14(a) at 62.8 units
- item 14(b) at 0 units.
[6] When forwarding his bill of costs to the Court for assessment, counsel for the defendants requested double costs for items 13(a), 13(b), 14(a), 14(b) (now eliminated), 15 and 26.
[7] Counsel for the defendants informed the Court that the defendants had, on June 7, 2005, made a written offer to settle the plaintiff's claim by the payment of $50,000 to Mr. Shtutman. The offer was said to remain on the table until June 8, 2005, after which time the offer was revoked and the defendants would instruct their witnesses to purchase plane tickets to attend at trial which was scheduled to commence and did commence on June 14, 2005.
[8] In addition, the Court was informed during the teleconference, that counsel for the defendants, after the plaintiff's case in chief closed, renewed verbally the offer to settle at $50,000, an offer which had to be accepted by the plaintiff before the defence was scheduled to open its case the next day.
[9] In my view, the defendants are not entitled to double costs because the conditions precedent entitling the defendants double costs under unamended rule 420(2)(a) have not been met.
[10] The weight of the jurisprudence as expressed by Justice Létourneau in Francosteel Canada Inc. v. African Cape (The) (C.A.), [2003] 4 F.C. 284, 2003 FCA 119, followed by Justice Pelletier, as he then was, in Halford v. Seed Hawk Inc., 2004 FC 1259 (F.T.D.) and Justice Tremblay-Lamer in Gélinas c. Centre d'analyse des opérations et déclarations financières du Canada, 2005 CF 478, recognize that there are two conditions precedent for a defendant to obtain double costs. The offer must be in writing and the offer must not have been revoked, that is, it must have remained open up to the date of the judgment.
[11] The offer of June 25, 2005, was revoked before trial commenced.
[12] I accept counsel for the defendants' statement in paragraph 12 of his affidavit that the offer to settle was renewed during trial but I understood him during the teleconference to say that it was revoked during trial, that is, had to be accepted before the defence called its witnesses. In any event, that continued offer to settle was not made in writing.
[13] Since the relevant text of section 420 that is applicable in the case before me is the text in force prior to the November 2005 amendment, I make no comment on the impact of the New Rules.
ORDER
THIS COURT ORDERS that counsel for the defendants shall submit to the Court, with the consent of counsel for the plaintiff a revised bill of costs which reflects the undisputed items, the agreements reached by counsel for the parties during the telephone conference call and this Court's decision denying double costs to the defendants. No costs are awarded on this motion.
"François Lemieux"
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