John Stagliano, Inc. v. Elmaleh, 2006 FC 1293

 

 

 

Date: 20061026

 

Docket: T-1779-05

 

Citation: 2006 FC 1293

 

BETWEEN:

JOHN STAGLIANO, INC.,

JULES JORDAN VIDEO, INC.

and ASHLEY GASPER

 

Plaintiffs

and

 

ALAIN ELMALEH, JACKY ELKESLASSY,

GERALD OUZZAN, 144942 CANADA INC.

(cob KAYTEL VIDEO DISTRIBUTION),

LEISURE TIME CANADA INC.,

TRANSWORLD SALES AGENCY LTD.,

JACKY'S ONE STOP DISTRIBUTION INC.,

SYLNET DISTRIBUTION INC.,

JOHN DOE, JANE DOE and OTHER PERSONS,

NAMES UNKNOWN, WHO DEAL IN UNAUTHORIZED

OR COUNTERFEIT EA MERCHANDISE

 

Defendants

and

ALAIN ELMALEH ET 144942 CANADA INC.

(cob KAYTEL VIDEO DISTRIBUTION)

 

Plaintiffs by Counterclaim

 

and

 

JOHN STAGLIANO, INC., JULES JORDAN VIDEO, INC.,

ASHLEY GASPER, SABIN BRUNET ET JACKY ELKESLASSY

 

Defendants by Counterclaim

ASSESSMENT OF COSTS – REASONS

MICHELLE LAMY, ASSESSMENT OFFICER

[1]               On June 27, 2006, the defendants Alain Elmaleh and 144942 Canada Inc. filed a bill of costs following the order of the Court dated May 10, 2006, dismissing the defendants’ motion to extend an interlocutory injunction.

 

[2]               In their written representations, counsel for the defendants take the position that the assessment is premature, because the order of May 10, 2006, does not provide that the costs are payable forthwith. This was noted by Prothonotary Morneau in paragraph 6 of his order dated September 14, 2006, following a motion by the defendants for security:

WHEREAS, in addition and most importantly, on May 10, 2006, the Court did not order —despite being invited to do so by counsel for the defendants—that any amount of costs ordered by the Court—under subsection 401(2) of the Rules or on any other basis—be payable forthwith.

 

[3]               In light of the decision in Waterfurnace Inc. v. 803943 Ontario Ltd., [1991] F.C.J. No. 912 (F.C.T.D.), the case law provides that costs awarded on an interlocutory motion are not payable until the Court has ruled on the merits of the action, unless the Court orders otherwise.

 

[4]               In my view, an order under subsection 401(2) of the Federal Courts Rules must be clear, so that the assessment officer has the authority to proceed with assessing the costs. I disagree with the submission of defendants’ counsel that the Court, by implication, ordered the costs to be payable forthwith.

 

 

[5]               Under the circumstances, the assessment of the defendants’ bill of costs filed on June 27 will not take place at this stage of the proceedings.

 

 

 

MONTRÉAL, QUEBEC, OCTOBER 26, 2006

 

 

Signed: “Michelle Lamy”

MICHELLE LAMY ASSESSMENT OFFICER

 

 

 

Certified true translation

Mary Jo Egan, LLB

 

 

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1779-05

 

BETWEEN:                                       JOHN STAGLIANO, INC. ET AL.v.

ALAIN ELMALEH ET AL.

 

 

WRITTEN ASSESSMENT OF COSTS

 

PLACE OF ASSESSMENT: Montréal, Quebec

 

REASONS BY MICHELLE LAMY, ASSESSMENT OFFICER

 

DATED:                                             October 26, 2006

 

 

SOLICITORS OF RECORD:

 

HEENAN BLAIKIE LLP Toronto, Ontario	FOR THE PLAINTIFF JOHN STAGLIANO INC.
LEGER ROBIC RICHARD LLP Montréal, Quebec	FOR THE DEFENDANTS JULES JORDAN VIDEO INC. AND ASHLEY GASPER
SEGAL, LAFOREST Montréal, Quebec	FOR THE DEFENDANTS ALAIN ELMALEH AND 144942 CANADA INC.