Date: 20110713
Docket: T-1236-10
Citation: 2011 FC
874
BETWEEN:
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CHARLES ROBERTSON
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Plaintiff
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and
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KYLE BEAUVAIS and
MOHAWK COUNCIL OF KAHNAWAKE
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Defendants
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and
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HER MAJESTY THE QUEEN
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Third-party
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REASONS FOR ASSESSMENT OF COSTS
JOHANNE PARENT, Assessment Officer
[1]
On March
29, 2011, the Court dismissed the motion by the Defendant, Kyle Beauvais, to
strike out the allegations made against him in the Statement of Claim, with
costs payable to the Plaintiff under Column III in any event of the cause. Following
this Order, the Plaintiff filed his Bill of Costs on May 11, 2011. The Assessment
of the Bill of Costs proceeded by conference call on June 29, 2011.
[2]
At the
hearing, counsel for the Plaintiff referred to Rule 409 of the Federal
Courts Rules and that the Assessment Officer may consider the factors set
out in Rule 400(3). His arguments mainly revolved around the complexity of the
issue before the Court and the amount of work required, because in his view the
motion had no merit and it was only brought as a strategy.
[3]
Counsel
for the Defendant, denying the Plaintiff’s argument, left the number of units
to be assessed to the discretion of the Assessment Officer. However, during
the course of his argument, he raised the issue of this Assessment of Costs
being premature. He argued that the costs were not, at this point in time,
payable to the Plaintiff considering that the Order for costs read “in any
event of the cause”. He further argued that costs payable “in any event of
the cause”, do not have the same meaning as costs “payable forthwith”, the
former meaning that without considering the end results of the proceeding, the
Plaintiff would have his costs of the motion. Counsel for the Defendant further
argued that no representations on costs were made to the Court and if they had
been made for the costs to be payable forthwith, said representations would
have needed to address the urgency or exceptional circumstances justifying such
a costs award. An award of costs payable forthwith is an extraordinary measure
and does not have the same meaning as costs payable in any event of the cause.
[4]
In
response to the issue of the Assessment of Costs being premature, counsel for
the Plaintiff did assert that costs on a solicitor-client basis were asked for
in the Notice of Motion and that no distinction should be made between costs
payable in any event of the cause and costs payable forthwith. In support of
this argument, he referred to page 915 of the Federal Courts Practice, Carswell
[2011] and to the decisions of, Wilcox v. Miss Megan (The) [2006] F.C.J.
No. 1149 (Assessment Officer); AIC Ltd. v. Infinity Investment Counsel Ltd.
[1998] 904,148 F.T.R. 240; Smith & Nephew Inc. v. Glen Oak Inc. [1995],
F.C.J. 64 C.P.R. (3d) 452; affirmed [1996] A.C.F. no. 762 74 C.P.R. (3d) 242.
[5]
I note
from the Court file that, the Defendant, Kyle Beauvais had asked in his motion
for “costs on a solicitor-client basis at the highest possible scale”. However,
the Court’s decision ordered costs to be payable under Column III, in any event
of the cause. Further, as mentioned by the parties during their representations
at the taxation, I understand that costs were not argued at the hearing of the
Defendant’s motion.
[6]
I have
read the three decisions brought forward by the Plaintiff. In the decision of Wilcox
v. Miss Megan (The) [2006] F.C.J. No. 1149 (supra), summary judgment was
granted by the Court, with costs. On the issue of immediate payment of costs
in relation to that motion, the Assessment Officer saw no basis for the Plaintiff
to be entitled to its costs immediately, the matter not being entirely settled.
In AIC Ltd. v. Infinity Investment Counsel Ltd. [1998] 904,148 F.T.R.
240 (supra), the Court dealt with costs further to the coming
into force of the Federal Courts Rules [1998]. In that case, costs
were awarded to the Defendants as the successful parties on a motion for judgment.
The Court further stated at paragraph 11:
“….
While Rule 401(1) still requires that the discretion to award costs be
judicially exercised, I interpret the Rules as providing that the discretion is
to be exercised in accordance with the policy for awarding costs on motions set
out in Apotex and Applied Systems - that the issue on a motion may not be the
issue at trial and that the fixing of
costs on a motion is an instrumentality aimed at expedition and focusing the
minds of litigants on the costs of litigation. If Thurston Hayes still
applied, the new Rules would not provide for the awarding of costs on a motion
as all costs of motions would have to await the outcome at trial. Rule 401(2)
requires the Court to order that the costs of the motion be payable forthwith
where the Court is satisfied the motion should not have been brought or
opposed. Rule 401 therefore implies that this Court should adopt a policy in
respect of costs on motions that is consistent with the dicta in Apotex and
Applied Systems. For these reasons I think the ratio of Thurston Hayes has been
displaced by Rule 401. In any event, if Thurston Hayes still had application, I
would restrict that application to costs in respect of interlocutory
injunctions and would not extend it to the present motion for judgment which,
being based on an alleged settlement agreement was clearly discrete from the
issue at trial which will be the merits of the Plaintiff's claim.”
From
that decision, I infer that the Court has the discretion to award costs on a
motion without awaiting the outcome of a matter and that, under Rule 401(2) of
the Federal Courts Rules, costs are payable forthwith “where the Court
is satisfied that a motion should not have been brought or opposed….”. In the case at bar, the Court
did not specifically order that costs be payable forthwith, nor can I find
anywhere in the Reasons for Order any mention that the motion brought by the Defendant
Beauvais should not have been brought or opposed. Pursuing the argument that
costs payable in any event of the cause on an interlocutory motion should not
wait to be assessed at the conclusion of the litigation, Plaintiff’s counsel
also relied on, Smith & Nephew Inc. v. Glen Oak Inc. [1995], F.C.J.
64 C.P.R. (3d) 452 , (supra). This decision is based on very specific facts
where the Court had declined to fix the costs as it was apparent, from the
material submitted, that considering the appeal pending from one of the orders,
the costs involved in both matters were intertwined. In obiter, the
Court further mentioned that it would endeavour to fix the costs and order
immediate payment if the motions in question were frivolous or vexatious. I do
not think that this case helps me to conclude that, in the case at bar, the
Court meant to order the immediate payment of costs as nothing in the Court’s
decision points in that direction.
[7]
I think
that, the circumstances in the series of cases advanced before me by the Plaintiff
are distinguishable from the leading jurisprudence on prematurity of taxation
of costs i.e.: Waterfurnace Inc. v. 803943 Ontario Ltd. [1991] F.C.J. No.
912 50 F.T.R. 19 (Prot.), Casden v. Cooper Enterprises Ltd. T.D. [1991]
3 F.C. 281 (A.O.); Pawliw v. Canada [1995] F.C.J. No. 835 (A.O.); and Nature’s
Path Foods Inc. v. Country Fresh Enterprises Inc. [1999] F.C.J. No. 827
(A.O.).
[8]
I adopt as
my position in the current matter the conclusions of Senior Assessment Officer
Stinson in paragraphs 6 and 7 of Nature’s Path Foods Inc. v. Country Fresh
Enterprises Inc.(supra), assessing a Bill of Costs where costs were allowed
by the Court in any event of the cause.
“6…With respect, I
think that the series of cases advanced before me by the Defendants
distinguishes the circumstances in Mennes. They effectively support a finding
in the present circumstances that, unless the Court directs otherwise, crystallization
and recovery of the amount for an interlocutory award of costs should only
occur coincident with the assessment of the award of costs flowing from
judgment on the substantive issues of the litigation.
a. The Plaintiff's argument that the final judgment
determinative of the substantive issues of this litigation could have no
relevance for this Assessment of the Costs of an interlocutory event cannot
succeed, given the jurisprudence cited by the Defendants. Those cases assert
the priority of a practical disposition of the elements of litigation. Thus,
interlocutory awards of costs should not ordinarily result in a multiplicity of
assessments and collections of costs possibly increasing the ultimate expense
of litigation as opposed to a single process more efficiently gathering
together all issues of costs for an assessment which, per Rule 408(2), could
address set-off. Rule 401(2) provides for, in the discretion of the Court,
the exception to this approach.”
[9]
In this
case as is in the case of Nature’s Path Foods Inc. v. Country Fresh
Enterprises Inc. (supra), I am of the opinion that the taxation of the Plaintiff’s
Bill of Costs is, at this time, premature and I cannot address it, in the
absence of directions from the Court, for disposition forthwith. I will issue a
certificate stating that the defendant’s Kyle Beauvais’ objection to the
taxation of the Plaintiff’s Bill of Costs is allowed.
“Johanne Parent”
Toronto, Ontario
July
13, 2011
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1236-10
STYLE OF CAUSE: CHARLES ROBERTSON v KYLE BEAUVAIS and
MOHAWK COUNCIL OF KAHNAWAKE and HER MAJESTY THE QUEEN
ASSESSMENT OF COSTS HELD
BY CONFERENCE CALL: June 29, 2011
REASONS FOR ASSESSMENT
OF COSTS BY: JOHANNE
PARENT, Assessment Officer
DATED: 13 July, 2011
REPRESENTATIONS:
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John Glazer
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FOR THE PLAINTIFF
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Frédérick
Pinto
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FOR THE DEFENDANT KYLE BEAUVAIS
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SOLICITORS OF RECORD:
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Leithman & Glazer
Montreal, Quebec
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FOR THE PLAINTIFF
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Elfassy Rose
Montreal, Quebec
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FOR THE DEFENDANT
KYLE BEAUVAIS
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