Date:
20071217
Docket:
T-1155-06
Citation:
2007 FC 1321
[ENGLISH TRANSLATION]
BOULET
LEMELIN YACHT INC.
Applicant
and
PACESHIP YACHT WITH REGISTRATION
# 13D 6732
and
THE OWNER AND ANY OTHER PERSONS
WITH
A CLAIM ON THE YACHT WITH
REGISTRATION # 13D 6732
and
JOHANNE CARON
Respondents
and
JOHANNE CARON
Plaintiff by Counterclaim
and
BOULET LEMELIN YACHT INC.
and
LOMBARD CANADA INSURANCE
Plaintiffs by Counterclaim
ASSESSMENT OF COASTS –
REASONS
DIANE PERRIER, ASSESSMENT OFFICER
[1]
On
January 31, 2007, the respondent and plaintiff by counterclaim, Johanne Caron,
discontinued her counterclaim. Therefore, under Rule 402 of the Federal
Courts Rules, when a party discontinues, the other parties may claim costs.
[2]
On
March 12, 2007, the applicant submitted its bill of costs and requested that it
be assessed without appearance of the parties. On May 14, 2007, we sent letters
to the parties asking them to submit their written submissions. The parties
have submitted their submissions and I am now ready to assess the bill of costs
according to the documentation on record.
[3]
Johanne
Caron, the respondent, claims that assessing the applicant’s bill of costs
would be premature, as the discontinuance that Johanne Caron, the plaintiff by
counterclaim, filed on January 31, 2007, is only partial with respect to the
applicant’s main action. The order by the Honourable Justice Blanchard dated
October 23, 2006, allowed the motion by the respondent, Johanne Caron, in part,
and set the total costs for that motion at $500 following the outcome of the
proceeding.
[4]
The
applicant claims that the costs granted in the order by the Honourable Justice
Blanchard on October 23, 2006, which ought to have followed the outcome of the
proceeding, are due, given that the respondent/plaintiff by counterclaim put an
end to that proceeding by filing her discontinuance of the counterclaim. A
counterclaim is a distinct action from the main application. The applicant
cites Rules 189 and 190 of the Federal Courts Rules. Furthermore, the
applicant cites the following case law: Ruhrkohle Handel Inter GmbH v.
Federal Calumet [1992] F.C.J. No. 473 (C.A.), Innotech Pty. Ltd v.
Phoenix Rotary Spike Harrows Ltd. 74 C.P.R. (3d) 275 (C.A.) and Cold
Ocean Inc v. Gornostaevka [1992] F.C.J. No. 935 (F.C.).
[5]
Based
on the research that I conducted, it is my view that the position of the
respondent, Johanne Caron, appears to be correct. I agree with her that the
Court order dated October 23, 2006, indicated that the costs amounted to $500
and follow the outcome of the case. In my opinion, in the Court judgment, it is
an issue of the main action and not the counterclaim.
[6]
As
per my reasons at paragraph 5, the bill of costs submitted by the applicant is
premature. My position is that we must await the outcome of the case before
assessing the applicant’s bill of costs in this matter.
“Diane
Perrier”
ASSESSMENT
OFFICER
Québec
City, Quebec
December
17, 2007
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