Fortier 2000 Ltée v. Matière, 2006 FC 167

Date: 20060209

Docket: T-611-01

Citation: 2006 FC 167

BETWEEN:

                                                           FORTIER 2000 LTÉE

                                                                                                                                               Plaintiff

                                                                          AND

MARCEL MATIÈRE

                                                                                                                                           Defendant

AND

MARCEL MATIÈRE

BÉTON PROVINCIAL LTÉE

Plaintiffs by counterclaim

AND

FORTIER 2000 LTÉE

Defendant to counterclaim

ASSESSMENT OF COSTS – REASONS

MICHELLE LAMY, ASSESSMENT OFFICER

[1]               On July 20, 2005, the Court granted in the following terms the motion by counsel for Béton Provincial Ltée to be removed as solicitor of record:

[translation]

ORDERS that Gowling Lafleur Henderson LLP serve on the Plaintiff by counterclaim, Béton Provincial Ltée, the Order of this Court within five days of the date of this Order;

ORDERS that the Order to remove as solicitor of record will take effect from the filing by Gowling Lafleur Henderson LLP of evidence of its service on the Plaintiff by counterclaim, Béton Provincial Ltée, as specified under subsection 125(4) of the Federal Courts Rules;

ORDERS that the Plaintiff by counterclaim, Béton Provincial Ltée, retain new counsel within twenty (20) days of the service of this Order and advise the Plaintiff/Defendant to counterclaim, Fortier 2000 Ltée, thereof within this same time limit or, in the alternative, invoke section 120 of the Federal Courts Rules, if applicable, as the case may be;

DECLARES that, insofar as the Plaintiff by counterclaim, Béton Provincial Ltée, fails to comply with the time limit of twenty (20) days to retain new counsel and advise the Plaintiff/Defendant to counterclaim, Fortier 2000 Ltée, thereof within this time limit or, as the case may be, invoke section 120 of the Federal Courts Rules and advise the Plaintiff/Defendant to counterclaim, Fortier 2000 Ltée, thereof within said time limit, the Plaintiff by counterclaim, Béton Provincial Ltée, will be deemed to have discontinued its counterclaim, with costs, considering the absence of instructions and the time elapsed in this case.

[2]               To come into force, it is clear that all of the conditions of this order must be met for the alleged discontinuance of the plaintiff by counterclaim, Béton Provincial Ltée, to take effect. Although the firm Gowling Lafleur Henderson served the order of July 20 within the specified time limit, the evidence was only submitted today. The only evidence on record of the service of this order concerns the defendant, Marcel Matière. Meanwhile, on January 30, 2006, Béton Provincial filed a notice of change of solicitor.

[3]               I acknowledge that I have no authority to assess the bill of costs, because the discontinuance with costs in favour of Fortier 2000 Ltée has not taken effect, owing to a mistake in filing the proof of service. However, I must comply with the terms of this order and, unfortunately, do not have the authority to change them.

[4]               Under these circumstances, I terminated the assessment hearing scheduled February 2.

DATED AT MONTRÉAL, ON FEBRUARY 9, 2006

Certified true translation

Michael Palles

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                          T-611-01

STYLE OF CAUSE:                         FORTIER 2000 LTÉE v. MARCEL MATIÈRE and MARCEL MATIÈRE BÉTON PROVINCIAL LTÉE v. FORTIER 2000 LTÉE

ASSESSMENT OF COSTS BY TELEPHONE CONFERENCE ON FEBRUARY 2, 2006

PLACE OF ASSESSMENT: Montréal, Quebec

REASONS BY:                                 MICHELLE LAMY, ASSESSMENT OFFICER

DATED:                                             February 9, 2006

SOLICITORS OF RECORD:

Brouillette & Associés

Montréal, Quebec                                FOR THE PLAINTIFF

DeBlois & Associés

Sainte-Foy, Quebec                             FOR THE PLAINTIFF BY COUNTERCLAIM

Béton Provincial Ltée