Date: 20030714
Docket: T-1344-98
Montréal, Quebec, July 14, 2003
Present: Mr. Richard Morneau, Prothonotary
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
PETAR MARKOVIC IN HIS OWN RIGHT
AND THAT OF HIS WIFE
AND DEPENDENTS, MIKLA MARKOVIC,
GORAN MARKOVIC and BOBAN MARKOVIC
Plaintiffs
and
ABTA SHIPPING COMPANY LIMITED
and
TRADE FORTUNE INC. SA
and
THE OWNERS AND ALL OTHER PERSONS
HAVING A RIGHT IN THE VESSEL "FLARE"
and
THE M.V. "FLARE" AND THE BENEFITS PAID
UNDER INSURANCE POLICIES
Defendants
ORDER
The defendants' motion under Rule 399 is allowed in part and the amount of $10,000 appearing in the order of this Court dated May 1, 2003 is varied accordingly to $6,000. The rest of this order of May 1, 2003 remains as is except that the 60 day period contained therein shall begin to run from the date of this order. Costs on this motion will follow the event of the cause.
Richard Morneau
Prothonotary
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
Date: 20030714
Docket: T-1344-98
Citation: 2003 FC 876
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
PETAR MARKOVIC IN HIS OWN RIGHT
AND THAT OF HIS WIFE
AND DEPENDENTS, MIKLA MARKOVIC,
GORAN MARKOVIC and BOBAN MARKOVIC
Plaintiffs
and
ABTA SHIPPING COMPANY LIMITED
and
TRADE FORTUNE INC. SA
and
THE OWNERS AND ALL OTHER PERSONS
HAVING A RIGHT IN THE VESSEL "FLARE"
and
THE M.V. "FLARE" AND THE BENEFITS PAID
UNDER INSURANCE POLICIES
Defendants
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This is a motion by the defendants under rules 397 and 399(1)(b) of the Federal Court Rules, 1998 (the rules) to have the Court set aside or vary the order it made on May 1, 2003.
[2] This order was made pursuant to the written motion by the defendants under rule 369(1) of the rules by which they sought leave to amend their statement of defence, without costs.
[3] In their respondent's record under rule 369(2) of the rules, the plaintiffs said they did not oppose the amendment sought by the defendants but argued forcefully and vigorously that the defendants should be ordered to pay the plaintiffs costs in the order of $50,000 as expenses incurred owing to the presence in the defendants' statement of defence of the very purpose of the request for amendment, namely, the defendants' allegation concerning the plaintiff's subjection to a collective agreement. The plaintiffs also requested an oral hearing of the defendants' motion under rule 369(2), given the costs they were claiming.
[4] Although they were served the respondent's record of the plaintiffs, the defendants did not file a reply under rule 369(3) in regard to the question of the costs.
[5] At the expiration of the period in rule 369(3), the Registry drew the defendants' motion to my attention, therefore.
[6] Since the amendment was not contested, and after considering the plaintiffs' representations concerning the reasons why they were seeking an order for costs of $50,000 against the defendants, I thought I could decide the defendants' motion without convening an oral hearing, and on May 1, 2003 I made the following order:
The Court is of the view that it can dispose of the instant motion based on the records filed by the parties.
Upon reading the Motion Records and reading the Written Submissions of counsel representing the parties, the Court hereby grants leave for the Defendants to serve and file their Re-Amended Statement of Defence within ten (10) days of the date of this Order.
As to the issue of costs, I am satisfied that the referential incorporation of the Cypriot Collective Agreement and the reliance thereon by the Defendants have played an important role in these proceedings. Consequently, this Court, in its discretion under, inter alia, rules 400(1), 400(3)(g)(i), 401(1) and 410(1), awards costs in the lump sum of CAN.$10,000 to the Plaintiffs and such costs shall be payable by the Defendants in any event and no later than sixty (60) days from the date of this Order.
Solely in order to reply to the amendments found in the Defendants' Re-Amended Statement of Defence, the Plaintiffs have the right to serve and file a Reply to Defendants' Re-Amended Statement of Defence within ten (10) days of service of the latter.
The other requests made by the Plaintiffs in their Motion Record in Response are denied.
Analysis
[7] In an affidavit dated May 9, 2003, one of the defendants' solicitors put the following argument as to the circumstances that led them not to file representations in reply under rule 369(3).
Upon being served on April 10, 2003 with the Plaintiffs' Motion Record in Reply to Defendants' Application for Leave to Amend their Amended Statement of Defence, whereby Counsel requested an oral hearing, Defendants' Counsel did not file written material in response to the Plaintiffs as Me Dion and I expected that the Court would fix a oral hearing date and would give further directions in view of the significant amount of untaxed costs ($50,000!) requested by the Plaintiffs and in view of the fact that the Plaintiffs' request raised an issue which was not dealt with by the moving party (Defendants) and was entirely new.
[8] Based on these explanations, it is clear that the present motion by the defendants cannot be considered under rule 397(1). That rule reads as follows:
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397.(1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
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397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :
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(a) the order does not accord with any reasons given for it; or
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a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
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(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
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b) une question qui aurait dû être traitée a été oubliée ou omise involontairement.
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[9] It is obvious that rule 397(1)(a) cannot apply in this case. As to rule 397(1)(b), the question of costs on the defendants' motion to amend was not overlooked or omitted since both parties discuss it in their motion record and the Court deals with it in its order of May 1, 2003.
[10] Still to be considered is rule 399(1)(b). Rule 399(1) reads:
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399. (1)On motion, the Court may set aside or vary an order that was made
(a) ex parte; or
(b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding,
if the party against whom the order is made discloses a prima facie case why the order should not have been made.
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399. (1)La Cour peut, sur requête, annuler ou modifier l'une des ordonnances suivantes, si la partie contre laquelle elle a été rendue présente une preuve prima facie démontrant pourquoi elle n'aurait pas dû être rendue :
a) toute ordonnance rendue sur requête ex parte
b) toute ordonnance rendue en l'absence d'une partie qui n'a pas comparu par suite d'un événement fortuit ou d'une erreur ou à cause d'un avis insuffisant de l'instance.
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[11] The grounds cited by one of the defendants' solicitors for not reacting to the respondent's record of the plaintiffs are erroneous, in my opinion.
[12] It is erroneous to think that the Court will order the oral hearing of a motion initially moved in writing simply because the respondent to the motion requests an oral hearing.
[13] Moreover, the amount of the costs demanded by the plaintiffs was not in the context of this case an amount that could necessarily lead the defendants to think that this factor was going to entail an oral hearing of the defendants' motion.
[14] Finally, it is also erroneous to argue that the question of costs was not an aspect covered by the defendants' motion. The latter asked that their motion be allowed without costs. The question of the costs was therefore an aspect that they addressed.
[15] It was therefore an error on the part of the defendants and it is this error that resulted in the failure of the defendants to file a record in reply.
[16] In the circumstances of the case, I am prepared to consider for the purposes of rule 399(1)(b) that the defendants' failure to file a record in reply under rule 369(3) constitutes "a failure to appear" at this stage of the written motion and that this situation is the result of a mistake.
[17] Furthermore, the defendants' record in reply under rule 399 convinces me that it discloses a prima facie case why my order of May 1, 2003 should not have been made in the amount of $10,000 as costs.
[18] Although the $10,000 may require variance, unlike the defendants I am not of the view that no costs could be awarded to the plaintiffs pursuant to their request in this sense in their respondent's record. Among other things, I do not think the plaintiffs should have to proceed by way of a distinct motion or that they should necessarily attach to their record a draft bill of costs.
[19] Nor do I think that the costs they demanded were res judicata owing to the fact that other motions presented earlier in this case could have broached the matter of the incorporation of the collective agreement. The costs awarded on these motions did not cover the situation of expenses incurred on the key aspect of the presence in the argument of the collective agreement.
[20] As to the amount of $10,000 in costs, I think it ought to be reduced by $4,000 as a proper reflection of the fact that the time the parties may have devoted to out-of-court discussions cannot be raised as a factor supporting an award of costs against the defendants. Moreover, it appears that even if the plaintiffs could have denied the applicability of the collective agreement, they did refer to it in attempting to get the defendants to at least pay the sums that this collective agreement might provide.
[21] In closing, finally, I do not think the appeal the defendants filed against my order of May 1, 2003 constitutes a flat rejection of this motion under rule 399. I assume that the defendants simply wished at this stage to protect their rights concerning any possible option.
[22] Accordingly, the order accompanying these reasons will provide that the defendants' motion under rule 399 is allowed in part and that the amount of $10,000 appearing in the order of this Court dated May 1, 2003 is varied accordingly to $6,000. The rest of this order of May 1, 2003 remains as is except that the 60 day period contained therein shall begin to run from the date of the order accompanying these reasons. As to the costs on this motion, it will be sufficient to state that they will follow the event of the cause.
Richard Morneau
Prothonotary
Montréal, Quebec
July 14, 2003
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT
Date: 20030714
Docket: T-1344-98
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
PETAR MARKOVIC IN HIS OWN RIGHT
AND THAT OF HIS WIFE
AND DEPENDENTS, MIKLA MARKOVIC,
GORAN MARKOVIC and BOBAN MARKOVIC
Plaintiffs
and
ABTA SHIPPING COMPANY LIMITED
and
TRADE FORTUNE INC. SA
and
THE OWNERS AND ALL OTHER PERSONS
HAVING A RIGHT IN THE VESSEL "FLARE"
and
THE M.V. "FLARE" AND THE BENEFITS PAID
UNDER INSURANCE POLICIES
Defendants
REASONS FOR ORDER
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1344-98
STYLE:
PETAR MARKOVIC IN HIS OWN RIGHT
AND THAT OF HIS WIFE
AND DEPENDENTS, MIKLA MARKOVIC,
GORAN MARKOVIC and BOBAN MARKOVIC
Plaintiffs
and
ABTA SHIPPING COMPANY LIMITED
and
TRADE FORTUNE INC. SA
and
THE OWNERS AND ALL OTHER PERSONS
HAVING A RIGHT IN THE VESSEL "FLARE"
and
THE M.V. "FLARE" AND THE BENEFITS PAID
UNDER INSURANCE POLICIES
Defendants
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 12, 2003
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATED: July 14, 2003
APPEARANCES:
J. Kenrick Sproule FOR THE PLAINTIFFS
Victor de Marco FOR THE DEFENDANTS
Danièle Dion ABTA SHIPPING COMPANY, LIMITED
and TRADE FORTUNE INC. S.A.
SOLICITORS OF RECORD:
The Law Offices of J. Kenrick Sproule FOR THE PLAINTIFFS
Montréal, Quebec
Brisset, Bishop FOR THE DEFENDANTS
Montréal, Quebec ABTA SHIPPING COMPANY, LIMITED and TRADE FORTUNE INC. S.A.
Stikeman, Elliott FOR THE DEFENDANTS
Montréal, Quebec IN THE RELATED CASE T-387-98
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