Date: 20060718
Docket: T-753-05
Citation: 2006 FC 902
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
PATSY ANN WILCOX
Plaintiff
and
THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP
MISS MEGAN and GARY ROSS HANLEY
Defendants
ASSESSMENT OF COSTS - REASONS
Willa Doyle
Assessment Officer
[1] The Plaintiff filed a Bill of Costs following an Order of the Federal Court dated April 11, 2006 granting the summary judgment in favour of the Plaintiff, with costs. The Plaintiff requested the Bill of Costs be disposed of by way of written submissions. I issued a direction setting a timetable for the serving and filing of all materials in support and in opposition to the Plaintiff's Bill of Costs. Both parties complied with the timelines for service and filing of submissions.
[2] The Defendant contends the Bill of Costs is premature. He states that the Plaintiff filed a motion seeking: (1) summary judgment on the issue of liability; and (2) a reference pursuant to Federal Courts Rules 153 on the issue of damages. The motions Judge found that there was no issue as to the liability of the Defendants to the Plaintiff and granted summary judgment of the issue of liability and further ordered a reference pursuant to Rule 153 for an assessment of the quantum of damages. The specific wording of the Order of Madam Justice Tremblay-Lamer is provided:
"...1.That Summary Judgment is granted in favour of the Plaintiff, with costs; 2. That under 153 of the Federal Court Rules the matter is hereby referred for an assessment of the quantum of damages to which the Plaintiff is entitled. The parties are entitled to discovery examination...."
[3] The Defendant remarks that this motion was an interlocutory motion and that it is practice for costs to be in the cause, unless they are specifically ordered to be paid "forthwith" or " in any event of the cause". He makes reference to Federal Court Rules 401. (1) Costs of motion and 401. (2) Costs payable forthwith. He also refers to the findings of Associate Senior Prothonotary Giles in Waterfurnace Inc. v. 803943 Ontario Ltd., [1991] F.C.J. No.912(T.D.)
[4] The Plaintiff's position however, is that this is not an interlocutory motion dealing with a procedural matter prior to the trial. He further states that the motion granted established liability in the defendants and that costs are therefore payable forth with on the basis that liability has been determined and the only issue that remains is that of the quantum of damages to which the Plaintiff is entitled which will be settled by the reference.
[5] Based on the research that I have done, in my opinion the Defendant's position is correct. I share the same view that there is no basis for the Plaintiff to be entitled to immediate payment of the costs relating to the motion. Also, since the matter of the reference remains outstanding the matter is not entirely settled.
[6] Pursuant to my reasons in paragraph [5] above, the Bill of Costs as submitted by the Plaintiff on May 10, 2006 cannot be assessed, since it is premature. Respectfully my position is that it will be necessary to wait for the outcome of the reference and any further decision(s) of the Federal Court before proceeding to assess the costs in this matter.
" Willa Doyle"
Assessment Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-753-05
STYLE OF CAUSE: PATSY ANN WILCOX - and- THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP
MISS MEGAN and GARY ROSS HANLEY
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
ASSESSMENT OF COSTS -
REASONS BY: Willa Doyle, Assessment Officer
DATED: July 18, 2006
WRITTEN REPRESENTATIONS BY:
James C. Crocco FOR THE PLAINTIFF
Mark McElman FOR THE DEFENDANTS
SOLICITORS OF RECORD:
Crocco Hunter FOR THE PLAINTIFF
Woodstock, NB
McInnes Cooper FOR THE DEFENDANTS
Saint John, NB
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