Sax v. Chomyn, docket T-1329-93

Date: 19990611

Docket: T-1329-93

BETWEEN:

     JIM SAX,

     Plaintiff,

     - and -

     KEN CHOMYN AND

     VIDEO-ONE SYSTEMS LIMITED,

     Defendants.

     REASONS FOR ORDER

REED J.

[1]      On July 30, 1998 a Notice of Status review was sent to the plaintiff, asking him to show cause why his claim should not be dismissed for delay.

[2]      Submissions in response were received from the plaintiff, and I determined that the plaintiff had failed to show cause, and I dismissed the plaintiff's claim on March 15, 1999.

[3]      The defendants, then, applied for an award of their costs. I responded, in an informal communication, indicating that it was not usually my practice to award costs when the dismissal of a claim had arisen as a result of the Court's initiative, rather than as a result of that of the defendant(s), nevertheless, I was prepared to hear any submissions counsel for the defendants might wish to make.

[4]      A date was thus arranged for the hearing of those submissions. The plaintiff filed, in response, an application for the payment out of the $1,500.00 plus interest that had been paid into Court by the plaintiff as security for costs.

[5]      On the hearing of those motions, counsel for the defendants argued that the defendants should not be denied costs because they had not conducted themselves in such a way as to justify such denial. She pointed out that had the plaintiff, on his own motion, filed for discontinuance, the defendants would have been entitled to costs. She pointed out that there had been expenses incurred by the defendants in conducting and responding to examinations for discovery, and that there had been expenses incurred in responding to an application by the plaintiff for summary judgment, which the plaintiff had sought to have determined on the basis of written submissions. This request was refused by the Court, and it was after that refusal that there was no further action taken by the plaintiff, who resides in Saskatoon. The defendants' counsel is located in Toronto. Counsel for the defendants pointed out that there was no obligation on the defendants to prod the plaintiff along in his lawsuit, or to incur the risk of further expense by bringing a motion for dismissal of the claim because of his delay. She noted that the defendants could not have been certain that any such motion would be successful, and it would create for the defendants yet further costs.

[6]      Counsel for the plaintiff's only argument was the one I had originally put forward, that costs in favour of one party or the other were not appropriate when the dismissal of a claim was the result of the Court's initiative, rather than that of one or other of the parties.

[7]      I have found counsel for the defendants' arguments compelling. I am persuaded that in the circumstances of this case, the defendants should recover their costs from the plaintiff, and that the amount paid into Court by the plaintiff should, in the first instance, be paid out to compensate the defendants for their costs. The cost of the present motion should also be recovered by the defendants from the plaintiff.

[8]      An order will issue accordingly.

                             (Sgd.) "B. Reed"

                                 Judge

Vancouver, British Columbia

11 June 1999

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

HEARING DATE:              June 10, 1999

COURT NO.:              T-1329-93

STYLE OF CAUSE:          Jim Sax

                     v.

                     Ken Chomyn and Video-One Systems Ltd.

REASONS FOR ORDER OF REED J.

dated June 11, 1999

APPEARANCES BY:

     Mr. Marvin W. Henderson          for the Plaintiff

     Ms. Julie A. Thorburn              for the Defendants

SOLICITORS OF RECORD: