Date: 20050421
Docket: T-1158-99
Citation: 2005 FC 548
Vancouver, British Columbia, Thursday, the 21st day of April, 2005
Present: THE HONOURABLE JUSTICE von FINCKENSTEIN
BETWEEN:
ANCHOR BREWING COMPANY
Plaintiff
- and -
THE SLEEMAN BREWING
& MALTING CO. LTD.
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion to reconsider the award of costs made in my order of March 14, 2005, wherein I awarded $2,500.00 in costs to the Plaintiff.
[2] The Plaintiff has filed a motion of reconsideration under Rule 397(1) arguing that the issue of costs was not raised or argued by either side and, consequently, the order should be silent on the issue of costs of the appeal.
[3] This motion is out of time but in light of the special circumstances, set out in paragraphs 2 to 6 of the Reply Memorandum of the Defendant of April 7, 2005, the Court hereby grants an extension of time for bringing this motion.
[4] As for the order of March 14, 2005, it is necessary to recall the events in this matter. They are correctly recalled in paragraphs 20 and 21 of the Plaintiff's motion record of April 4, 2005.
20. In its Written Representations and at the hearing of the motion, the Plaintiff raised a preliminary basis for the dismissal the Defendant's motion, namely that the Defendant's Notice of Motion did not set out the grounds "intended to be argued" by the Defendant as required by Rule 359. In particular, the "grounds" did not include a single allegation that Madam Prothonotary Aronovitch erred in issuing the Order that was the subject of appeal.
21. Mr. Justice von Finckenstein agreed with the Plaintiff and originally dismissed the Defendant's motion but granted leave for the Defendant to re-file the motion returnable in Toronto the following week. At the suggestion of counsel for the Plaintiff, the Defendant clarified the ground being asserted and, upon agreement between the parties, the Defendant's motion proceeded on that basis.
[5] In my reasons for order dated March 14, 2005, I specifically referred to this agreement of counsel as to the grounds for appeal in paragraph 2, and dismissed the main motion ruling that the Defendant was actually appealing the order of Prothonotary Aronovitch of April 8, 2004 (for which he was out of time) and not her reconfirming order of February 14, 2005 (the subject of the appeal).
[6] While I received no oral submissions on costs, both sides had made written representations; to wit:
a) The Defendant stated in paragraph 6 of its notice of motion:
As the questions which are the subject of the appeal have been answered to the extent required by the Rules and jurisprudence, the Defendant believes the proper order as to costs here and below is "to the Defendant in any event of the cause".
b) The Plaintiff stated in paragraphs 25 to 28 of its written representations:
25. It is also submitted that the Plaintiff should be awarded its costs of this motion on a solicitor and client scale, payable forthwith in any event of the cause.
26. The Defendant has been found to be in breach of the Orders of Madam Prothonotary Aronovitch and for the reasons set out above, it is submitted that this appeal should not have been brought.
27. In addition, it is submitted that the Defendant is, in essence, attempting to re-litigate the propriety of the questions in issue, which was argued at the motion that resulted in the Order of Prothonotary Aronovitch dated April 8, 2004. That order was not appealed.
28. Accordingly, it is respectfully submitted that this motion is unnecessary, improper, vexatious and abusive and the Plaintiff should not have been put to the expense of defending the motion.
[7] In light of the foregoing, I fail to see how the order does not:
a) accord with the reasons; or
b) overlooked or omitted something that should have been dealt with, as required by Rule 397(1).
It must be recalled that it is Rule 397(1) which addresses oversights by the Court, not oversights by counsel. See: Archibald v. Canada (1998), 144 F.T.R. 260 and Boateng v. Canada, [1990] F.C.J. No 472.
[8] Surely, it was implicit in the order that the costs award was made in light of the originally deficient motion record of the Defendant, and in light of the fact that the Defendant was, in effect, trying to appeal the original order of Prothonotary Aronovitch and not the reaffirming order (which was the subject of the actual appeal). The motion was unnecessary and improper and the Plaintiff should not have been put to the expense of defending this motion.
[9] Having now had the full benefit of submissions on costs from both parties (as a result of this motion for reconsideration), I see no reason for changing the award of costs. I appreciate that my order could have been more explicit as to the award of costs and, accordingly, there will be no award as to costs in this motion to reconsider.
ORDER
THIS COURT ORDERS that this application to reconsider is denied. There will be no order as to costs.
(Sgd.) "K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1158-99
STYLE OF CAUSE: ANCHOR BREWING COMPANY
- and -
THE SLEEMAN BREWING & MALTING CO. LTD.
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER: von FINCKENSTEIN J.
DATED: April 21, 2005
WRITTEN REPRESENTATIONS BY:
Mr. Kevin K. Graham for Plaintiff
Mr. Kenneth D. McKay for Defendant
SOLICITORS OF RECORD:
Smart & Biggar for Plaintiff
Ottawa, ON
Sim, Hughes, Ashton & McKay LLP for Defendant
Toronto, ON
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