Date:
20120920
Docket:
A-436-11
Citation:
2012 FCA 244
CORAM: NOËL
J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
CALOGERAS
& MASTER SUPPLIES INC.
Appellants
and
CERES HELLENIC SHIPPING
ENTERPRISES LTD.
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP LAURENT"
and THE SHIP "CAP LAURENT"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP ROMUALD"
and THE SHIP "CAP ROMUALD"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP GEORGES"
and THE SHIP "CAP GEORGES"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP LEON" and THE SHIP "CAP LEON"
and ALL OWNERS and OTHERS
INTERESTED IN
THE SHIP "CAP JEAN" and
THE SHIP "CAP JEAN"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP DIAMANT"
and THE SHIP "CAP DIAMANT"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP PIERRE" and THE SHIP "CAP PIERRE"
Respondents
Heard
at Montréal, Quebec, on September 20, 2012.
Judgment
delivered from the Bench at Montréal, Quebec, on September 20, 2012.
REASONS FOR JUDGMENT OF THE COURT
BY: PELLETIER J.A.
Date:
20120920
Docket:
A-436-11
Citation:
2012 FCA 244
CORAM: NOËL
J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
CALOGERAS
& MASTER SUPPLIES INC.
Appellants
and
CERES HELLENIC SHIPPING
ENTERPRISES LTD.
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP LAURENT"
and THE SHIP "CAP LAURENT"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP ROMUALD"
and THE SHIP "CAP ROMUALD"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP GEORGES"
and THE SHIP "CAP GEORGES"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP LEON" and THE SHIP "CAP LEON"
and ALL OWNERS and OTHERS
INTERESTED IN
THE SHIP "CAP JEAN" and
THE SHIP "CAP JEAN"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP DIAMANT"
and THE SHIP "CAP DIAMANT"
and THE OWNERS and ALL OTHERS
INTERESTED IN
THE SHIP "CAP PIERRE" and THE SHIP "CAP PIERRE"
Respondents
REASONS FOR JUDGMENT
OF THE COURT
(Delivered
from the Bench at Montréal, Quebec, on September 20, 2012)
PELLETIER J.A.
[1]
This
is an appeal from an order for costs made following a trial in an action for
goods sold and delivered. Since the respondents had made an offer of settlement
pursuant to Rule 420 of the Federal Courts Rules SOR/98-106, the trial judge
took into account that offer of settlement in fixing costs. While the appellant
(plaintiff) was successful at trial, the respondents (defendants) achieved a
better result than their offer of settlement and, as a result, were entitled,
pursuant to Rule 420(2)(a), to their costs from the date of their offer. The
trial judge made an order for costs in which the appellants recovered their
costs to the date of the offer and the respondents recovered their costs from
the date of the offer. The difficulty which gives rise to this appeal is that,
this Court, on appeal from the Federal Court’s judgment on the claim, allowed
the appeal in part, with the result that the respondents were no longer in the
position of having done better than their offer of settlement. The appellant
now seeks to set aside the trial judge’s order of costs and to recover its
costs to the end of trial.
[2]
We
agree that, as a result of this Court’s decision allowing the appeal from the
judgment rendered after trial, the respondent’s offer of settlement no longer
has any effect under Rule 420. As a result, the normal rules apply which means
that, subject to the trial judge’s exercise of her discretion, the appellant,
as the successful party, would be entitled to its costs throughout.
[3]
Notwithstanding
her decision with respect to the respondents’ offer, the trial judge considered
the possibility that Rule 420 might not apply and held that, in that event, she
would award the appellant costs of $60,000 plus disbursements of $2,290.21.
[4]
The
respondents argue that even if Rule 420 does not apply, the circumstances of
the trial were such that the award of costs made by the judge should be
maintained. It is true that the appellant’s management of this litigation left
much to be desired as evidenced by such conduct as the serial dismissals of
counsel, including trial counsel in the middle of the trial and an unjustified
re-calculation of the debt owing which increased it by over one million
dollars. However, the trial judge took these factors into consideration when
she addressed her mind to the quantum of costs in the event that Rule 420 did
not apply. The appellants were claiming solicitor and client costs based on
their contract with the respondents. At the hearing of the motion to fix costs,
the amount claimed was approximately $200,000. The trial judge would have
reduced this amount to $60,000 in recognition of the appellant’s conduct,
including the fact that appellant’s mismanagement resulted in “costs thrown
away” by the respondents, including unnecessary expert reports. In our view, we
should give effect to the suggestion made by the trial judge.
[5]
In
the result, the appeal will be allowed with costs, the trial judge’s order of
costs will be set aside and the appellant will be awarded costs of the trial in
the amount of $60,000 plus disbursements of $2,290.21.
"J.D. Denis
Pelletier"
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-436-11
STYLE OF CAUSE: Calogeras
& Master Supplies Inc. v. Ceres Hellenic Shipping Enterprises Ltd. et al
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September
20, 2012
REASONS FOR JUDGMENT
OF THE COURT BY: NOËL
J.A.
PELLETIER J.A.
TRUDEL
J.A.
DELIVERED FROM THE
BENCH BY: PELLETIER
J.A.
APPEARANCES:
|
André
A. Lévesque
|
FOR
THE APPELLANT
|
|
Jean-Marie
Fontaine
|
FOR
THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
André
A. Lévesque
Bonaventure, Quebec
|
FOR THE APPELLANT
|
|
Borden
Ladner Gervais LLP
Montréal, Quebec
|
FOR THE RESPONDENTS
|
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