Date: 20110406
Docket: T-407-07
Citation: 2011 FC 427
BETWEEN:
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NOVEL COMMODITIES S.A.
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Applicant
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and
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REPUBLIC OF GUINEA
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Respondent
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ASSESSMENT OF
COSTS - REASONS
Bruce Preston
Assessment Officer
[1]
By
way of Reasons for Order and Order dated October 28, 2010, the Court dismissed
the motion by Crew Gold Corporation, to vary the final charging order, with
costs. The Applicant filed its Amended Bill of Costs on November 19, 2010. Having
determined that this is an assessment which could proceed in writing, on
December 1, 2010 a Direction setting a schedule for the exchange of material
was issued. As both parties have filed submissions as to costs, I will proceed
with the assessment.
[2]
At
paragraph 1 of its Written Representations filed December 23, 2010, the
Applicant submits:
Novel is applying for an order
of costs against Crew Gold Corporation (“Crew”) totalling $12,035.38, as set
out in the Amended Bill of Costs.
[3]
Although
the Applicant requests an order of cost, it is clear from its submissions that
an assessment is being requested and that the claim concerns the costs awarded
against Crew Gold Corporation (“Crew”) and not any award of costs against the Republic of Guinea.
[4]
The
Applicant has presented five claims under Item 5 of Tariff B of the Federal
Courts Rules for preparation and filing of a contested motion. I will commence
by addressing the Applicant’s motion requiring Crew to provide responses and
produce documents, the Applicant’s motion for a show cause order and the
Applicant’s motion for a final charging order (“the Applicant’s Motions). In
its Written Representations filed December 23, 2010, the only submissions which
relate to the Applicant’s Motions are found at paragraph 4. Referring to the
attempts by the Applicant to execute a judgment rendered April 4, 2007, the
Applicant submits:
Such efforts on the part of
Novel included a writ of seizure, a garnishment order and a Motion for Interim
Order, all in relation to the Crew shares owned by Guinea. Such efforts were met with no reaction
whatsoever from Crew until it filed its Motion for Leave to Intervene on or
about April 21, 2008.
[5]
In
response, at paragraph 23 of Crew’s Reply Material filed January 11, 2011, Crew
submits:
Novel should not be entitled
to any costs related to the preparation filing and appearance on its Motion for
a Final Charging Order and on it Ex Parte Motion for a Show Cause Order,
given that those proceedings are not linked to Crew Gold’s Motion for Leave to
Intervene or Motion to Vary, but rather related to Novel’s claims against the
Republic of Guinea.
[6]
In
rebuttal the Applicant argues:
In fact, the reasonable,
justified and appropriate nature of the amounts included in the Amended Bill of
Costs is clearly supported by the supporting documentation filed by Novel in
relation to, inter alia, the order (dated October 28, 2010), the Motion
to Provide Responses, its written representations in the context of the Motion
to Stay and the written representations, all evidenced in the Court records.
[7]
In Balisky v Canada 2004 FCA 123 it was
held:
I have not summarized or
commented on the details in the parties' submissions concerning the
interlocutory events in issue. It is sufficient to note only that Alliance has correctly objected to
claims for costs as a function of orders in question. Rule 400(1), which vests
full discretionary power in the Court over awards of costs, means that orders
and judgments must contain visible directions that costs have been awarded.
Given the Federal Courts Act, ss. 3 and 5(1) defining the Court and Rule 2 of
the Federal Court Rules, 1998 defining an assessment officer, the absence of
that exercise of prior discretion by the Court leaves me without jurisdiction
under Rule 405 to assess costs. In Webster v. Canada (Attorney General), [2003] F.C.J. No. 1652
(A.O.), I concluded that the Rule 400(1) discretion in the court for
interlocutory costs is exercised independently from the result of the judgment,
except where expressly provided by language such as "costs in the
cause". This means that I must reject the Appellants' position that the
judgment of the Federal Court of Appeal perfected their entitlement to costs
for interlocutory events in the Federal Court for which the relevant orders
specifically denied costs. Accordingly, I disallow items 5 (preparation of a
response to the motion), 13 (preparation for the hearing of the motion), 14
(appearance on the motion) and 24 (travel to the motion's venue).
[8]
In
keeping with the findings above, I find that an assessment officer lacks
jurisdiction to allow costs of a motion unless the Court has exercised its
jurisdiction to award costs for that particular motion. Absent such an order,
the only other jurisdiction an assessment officer has concerning motions is
found in Rule 402, which states:
Unless otherwise ordered by
the Court or agreed by the parties, a party against whom an action, application
or appeal has been discontinued or against whom a motion has been abandoned
is entitled to costs forthwith, which may be assessed and the payment of which
may be enforced as if judgment for the amount of the costs had been given in
favour of that party. (emphasis added)
[9]
Having
regard to the Applicant’s motion requiring Crew to provide responses and
produce documents in response to questions put to Mr. Taylor, by way of letter
dated August 8, 2008, this motion was adjourned sine die by the
Applicant. As there is no order awarding costs and the motion was not
abandoned, I am without jurisdiction to allow costs, therefore, no costs are
allowed.
[10]
Concerning
the Applicant’s motion for a show cause order, the order dated November 19,
2007 awards cost to the Applicant against the Republic of Guinea.
As indicated at paragraph 5 above, the present Bill of Costs relates to costs
against Crew only. As the costs awarded were against the Respondent, the
Applicant must collect these costs from the Republic of Guinea, not Crew.
Therefore, the costs awarded for the motion for a show cause order are not
allowed. In keeping with this finding, and for the same reasons, the Applicants
claim under Item 6 of Tariff B of the Federal Courts Rules, for
appearance on the motion for a show cause order are not allowed.
[11]
Having
regard to the Applicant’s motion for a final charging order, at paragraph 2 of
the Order dated August 30, 2010 the Court held:
The legal and/or beneficial
interest of the Guinea in the Shares stands charged with the payment of the Sum
due from Guinea to Novel pursuant to an order of this Court dated April 4,
2007, together with any interest due pursuant to the said order, together with
the costs of Novel’s motion in an amount to be assessed, which costs shall be
added to the judgment debt;
[12]
It
is clear that the costs payable as a result of the final charging order are
payable by the judgment debtor, Republic of Guinea, as these costs
shall be added to the judgment debt. As these costs were not awarded against
Crew, and in keeping with my finding in paragraph 12 above, the costs awarded
for the motion for a final charging order are not allowed. Also, in keeping
with this finding, and for the same reasons, the Applicant’s claim under Item 6
of Tariff B of the Federal Courts Rules, for appearance on the motion
for a final charging order is not allowed.
[13]
I
will now turn my attention to Crew’s motion for leave to intervene and Crew’s motion
to vary the final charging order. After reviewing the Written Representations
of Crew, it is evident from paragraphs 15 and 17 that Crew acknowledges that
the Applicant is entitled to the costs of these motions. Having confirmed this
to be correct, I will turn my attention to a determination of the quantum to be
allowed for these motions.
[14]
In
support of its claim, the Applicant submits that Crew’s motion to intervene was
filed only after the Applicant filed a motion for a final charging order and
was abruptly abandoned on July 14, 2010. The Applicant contends that after
abandoning its motion to intervene and after the final charging order had been
granted, Crew filed its motion to vary the final charging order, based on
grounds that were known to Crew prior to its motion for leave to intervene. The
Applicant further argues that, in the Order of October 28, 2010, the Court
found that Crew “failed to demonstrate that there is a serious issue to be
tried justifying the requested remedies”. At paragraph 13 of its Written
Representations the Applicant submits:
As such, given the foregoing,
Novel has had to incur additional costs (set out in the Amended Bill of Costs) in
the face of Crew’s manoeuvres, namely the Motion to Intervene, capriciously
abandoning such motion, and proceeding with an about-face by once again
attempting to frustrate Novel’s efforts to have Crew deliver the shares held by
Guinea, by filing a motion to vary months after the Final Charging Order was
rendered.
[15]
Crew
submits that without a Court order there was no way they could have complied
with the Courts final charging order. Crew further argues that the Applicant
has produced no evidence to support any claim concerning the amount of work
done or the reprehensible conduct of Crew. At paragraph 21 of its Written
Representations, Crew contends:
There is no evidence in the
record, that Crew Gold, either by its Motion for Leave to Intervene or by its
Motion to Vary, intended to prevent Novel from attempting to have Crew Gold
deliver its shares held by the Republic of Guinea, or acted in bad faith nor instituted
improper, vexatious or unnecessary proceedings.
[16]
In
rebuttal, counsel for the Applicant submits that the Applicant was required to
file a response to Crews motion to intervene, perform a cross-examination and
file a motion to compel responses to questions. Counsel further contends that
the Court rejected Crew’s allegation concerning the necessity of filing its
Motion to Vary. Finally, counsel submits that the factors found in Rule 400(3)
of the Federal Courts Rules were addressed at paragraphs 19 and 20 of
the Applicants Written Representations and that Wilson v Canada [2000]FCJ No
1783 was referred to in support of the argument that Assessment Officers have
discretion to consider the factors referred to in Rule 400(3).
[17]
The
Applicant has claimed 7 units under Item 5 for Crew’s motion for leave to
intervene. Although it was not an extremely complex motion, the Applicant did
cross examine Crew’s affiant and did file a motion record in response which
contained an affidavit and written representations. In addition the motion was
adjourned several times prior to being abandoned. For these reasons I allow 5
units under Item 5
[18]
Concerning
Crew’s motion to vary the charging order, the Applicant has claimed 7 units
under Item 5 and 3 units under Item 6. The Court found that Crew failed to
demonstrate that there was a serious issue to be tried. Although Crew cannot be
penalized for this, it is an indication that the Applicant was completely
successful. Given the nature of the motion and the relative complexity created
by the consideration of the legal proceeding in France, I allow 6
units under Item 5 and 2 units under Item 6.
[19]
Having
regard to Item 8 and Item 9 concerning the cross examination of Mr. Taylor, and
Item 26, Assessment of Costs, I have reviewed the materials filed and determined
that these amounts were not contested by Crew. Having reviewed the file and the
submissions as to costs, I find the amounts claimed to be reasonable and
necessary and in the circumstances of this file, Items 8, 9 and 26 are allowed
as claimed.
[20]
The
only disbursement being contested by Crew is the invoice for $77.32, for a
transcript of the cross examination of Mr Taylor. As counsel for Novel has
submitted that this amount should be struck off the Bill of Costs, this amount
is not allowed.
[21]
Taking
the above into consideration the amount claimed for transcripts of cross
examination is reduced to $654.90. All other disbursements are allowed as
claimed.
[22]
For
the above reasons the Applicants Bill of Costs, presented at $12,035.38 is
assessed and allowed at $7,928.06.
“Bruce Preston”
Toronto,
Ontario
April
6, 2011
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-407-07
STYLE OF CAUSE: NOVEL COMMODITIES
S.A.
v.
REPUBLIC OF GUINEA
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE
OF THE PARTIES
PLACE OF ASSESSMENT: TORONTO, ONTARIO
REASONS FOR ASSESSMENT OF COSTS: BRUCE PRESTON
DATED: APRIL 6, 2011
WRITTEN REPRESENTATIONS:
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Audrey
Préfontaine
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FOR THE APPLICANT
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Louis
Brousseau
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FOR CREW GOLD
CORPORATION
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SOLICITORS OF RECORD:
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Davies
Ward Phillips & Vineberg LLC
Montreal, PQ
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FOR THE APPLICANT
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McCarthy
Tétrault LLP
Montreal, PQ
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FOR CREW GOLD
CORPORATION
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