Date : 19990411
Docket : T-3474-90
OTTAWA, ONTARIO, THURSDAY, THIS 4TH DAY OF NOVEMBER, 1999
BEFORE: THE HONOURABLE MADAME JUSTICE McGILLIS
BETWEEN:
PERFORMING RIGHTS ORGANIZATION
OF CANADA LIMITED
Plaintiff
- and -
455559 ONTARIO LIMITED and
CONSTANTIN KOITSOPOULOU
Defendants
ORDER
For reasons delivered orally, the motion is granted and the portion of the Order dated December 17, 1998 awarding costs to the plaintiff in the amount of $900.00 payable forthwith and in any event of the cause is set aside. Costs in the cause.
Date : 19991104
Docket : T-3474-90
BETWEEN:
PERFORMING RIGHTS ORGANIZATION
OF CANADA LIMITED
Plaintiff
- and -
455559 ONTARIO LIMITED and
CONSTANTIN KOITSOPOULOU
Defendants
REASONS FOR ORDER
[Delivered from the Bench at Ottawa, Ontario
on November 4, 1999]
McGILLIS J.
[1] The defendants have brought a motion under Rule 399 to set aside the portion of the Order dated December 17, 1998 of Madame Justice Reed awarding costs to the plaintiff on its motion in the amount of $900.00 payable forthwith and in any event of the cause.
[2] Prior to the return of the motion before Madame Justice Reed, counsel had agreed to extend the deadline in a previous Court order for the filing of the defendants" affidavit of documents. The agreement between counsel was reduced to writing in a letter dated December 16, 1998 from counsel for the plaintiff to counsel for the defendants. In arriving at their consent agreement concerning the extension of a deadline, counsel for the parties did not address the question of costs.
[3] On the return of the motion before Madame Justice Reed, only counsel for the plaintiff was in attendance. As Madame Justice Reed began to endorse the consent order, counsel for the plaintiff requested costs in the amount of $900.00 payable forthwith in any event of the cause. Madame Justice Reed granted the award of costs. Counsel for the defendants only became aware that the question of costs was raised by counsel for the plaintiff subsequent to the hearing before Madame Justice Reed.
[4] Counsel for the defendants submitted that Madame Justice Reed"s discretionary award of costs should be set aside under Rule 399(1)(b) or Rule 399(2)(a). With respect to Rule 399(1)(b), counsel for the defendants submitted that the Order for costs should be set aside on the basis that it was made in the absence of counsel for the defendants who had no advance notice that counsel for the plaintiff intended to seek an enhanced award of costs despite their agreement on the extension of time. I agree with that submission. In my opinion, it was not proper for counsel for the plaintiff, in appearing on a consent motion, to seek an order for enhanced costs on the motion without providing prior notice to counsel for the defendants. In other words, it was not open to her to deviate from the consent agreement, as confirmed in her letter to counsel for the defendants, without advising him of her intention to raise another issue with the presiding judge.
[5] I have therefore concluded that the motion to set aside the portion of the Order dated December 17, 1998 should be granted, Costs will be in the cause.
OTTAWA
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