Date: 20051025
Docket: A-678-04
Citation: 2005 FCA 343
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
THE OSHAWA GROUP LIMITED, SOBEYS INC., ALIMENTATION BLANCHETTE ET CYRENNE INC., MARCHÉ ALAIN LARIVIÈRE INC., MARCHÉ JIMMY INC., MARCHÉ RÉAL CHARTIER INC., 9063-8867 QUÉBEC INC. c.o.b.a. MARCHÉ JULIEN, ARSENE GAUDREAULT INC., and 2959-1120 QUÉBEC INC. c.o.b.a. GROSSISTE DE L'ENCAN
Appellants
and
TRADITION FINE FOODS LTD.
Respondent
Heard at Toronto, Ontario, on September 14, 2005.
Judgment delivered at Ottawa, Ontario, on October 25, 2005.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
Date: 20051025
Docket: A-678-04
Citation: 2005 FCA 343
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
THE OSHAWA GROUP LIMITED, SOBEYS INC., ALIMENTATION BLANCHETTE ET CYRENNE INC., MARCHÉ ALAIN LARIVIÈRE INC., MARCHÉ JIMMY INC., MARCHÉ RÉAL CHARTIER INC., 9063-8867 QUÉBEC INC. c.o.b.a. MARCHÉ JULIEN, ARSENE GAUDREAULT INC., and 2959-1120 QUÉBEC INC. c.o.b.a. GROSSISTE DE L'ENCAN
Appellants
and
TRADITION FINE FOODS LTD.
Respondent
REASONS FOR JUDGMENT
MALONE J.A.
[1] This is a cross-appeal by the appellants (hereinafter Sobeys) from an order of O'Reilly J. dated August 20, 2004 (the Costs Order) that relates to the level of costs awarded to it, the successful party at trial.
[2] Sobeys complains that the judge erred in dismissing its rule 403 motion without giving it an oral hearing. It also argues that the judge erred in failing to provide directions to the assessing officer in light of all the relevant circumstances.
[3] Brief facts are necessary to deal with this appeal:
a. The judge dismissed the respondent's action on July 20, 2004. Sobeys was entirely successful at trial. In his reasons the judge invited both parties to file written submissions on the issue of costs. The parties filed written submissions on costs on or about August 9, 2004.
b. Sobeys' position was that it is entitled to its costs, and that certain directions should be given to the assessing officer. Sobeys reserved in its submissions all rights under rule 403 to bring a motion for directions as to costs. Out of an abundance of caution and before the judge made the Costs Order, Sobeys served a motion pursuant to rule 403 of the Federal Court Rules, 1998 for directions to the assessing officer on August 13, 2004. The respondent did not file any motion materials responding to the rule 403 motion.
c. The Costs Order states that:
upon dismissing the plaintiff's action in a judgment dated July 20, 2004;
and upon inviting the parties to make submissions on costs;
and upon reviewing the parties' submissions, including the material filed by the defendants pursuant to rule 403 of the Federal Court Rules 1998 SOR/98-106.
This Court Orders that:
1. The defendants are entitled to their costs to be determined by an assessment officer.
2. No special directions are given.
d. Sobeys, rule 403 motion was not heard orally by the judge.
e. Sobeys then delivered a motion for directions pursuant to rule 54 of the Federal Court Rules, 1998 for clarification as to the effect of the Costs Order on its rule 403 Motion. The judge issued a direction on September 29, 2004;
In light of my earlier order of August 20, 2004, any further directions on costs may be obtained from the assessing officer.
f. Sobeys had served an offer to settle on the respondent on October 2, 2003.
[4] I disagree with Sobeys first argument. Rule 30(1) provides:
|
30. (1) A judge or prothonotary who is not sitting in court may make an order on a motion if
(a) the judge or prothonotary is satisfied that all parties affected have consented thereto;
(b) the motion was brought in accordance with rule 369; or
(c) for any other reason the judge or prothonotary considers that the order can be made without a hearing without prejudice to any party.
|
30. (1) Un juge ou un protonotaire ne siégeant pas en cour peut rendre une ordonnance à la suit d'une requête si, selon le cas :
a) il est convaincu toutes les parties intéressées y ont consenti;
b) la requête a été presentée selon la règle 369;
c) il estime, pour toute autre raison, que l'ordonnance peut être rendue sans audience sans que cela porte préjudice aux parties.
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Paragraph 30(1)(c) confers broad discretion on a judge in deciding whether a motion should be heard orally. There was no evidence of prejudice in this case. In the absence of prejudice it was open to O'Reilly, J. to decide the motion without an oral hearing.
[5] I do agree with Sobeys second argument. In reading the Order of August 20, 2004, I am unable to discern what, if anything, the assessing officer is to make of Sobeys' offer to settle, served October 2, 2003. The judge's order is ambiguous because it is impossible to know if the judge interpreted the settlement offer as one to which rule 420(2) applied or, if rule 420(2) does not apply, as one that ought nonetheless to be taken into account pursuant to rule 400(3)(e). The ambiguity of the directions makes it impossible for the assessing officer to know how to deal with the settlement offer.
[6] Accordingly, I would allow the cross-appeal and set aside the Order of August 20, 2004 and remit the matter to O'Reilly J. to provide unambiguous directions to the taxing officer. Alternatively, the judge might resolve the matter of costs himself. There appear to be only a few major issues in dispute in respect of costs and the trial judge being familiar with what the trial required might, without additional proceedings, decide the costs himself.
[7] As Sobeys has been awarded lump sum costs in appeal A-500-04, I would not award costs in the cross-appeal.
"B. Malone"
J.A.
"I agree
Gilles Létourneau
J.A."
"I agree
Marhsall Rothstein
J.A."
FEDERAL COURT OF APPEAL
Names of Counsel and Solicitors of Record
DOCKET: A-678-04
STYLE OF CAUSE: THE OSHAWA GROUP LIMITED ET AL
Appellants
- and -
TRADITION FINE FOODS LTD.
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 14, 2005
REASONS FOR JUDGMENT BY: Malone J.A.
CONCURRED IN BY: Létourneau J.A.
Rothstein J.A.
DATED: October 25, 2005
APPEARANCES BY:
Mr. Arthur B. Renaud For the Appellants
Ms. Jeilah Y. Chan For the Appellants
Mr. Gregory A. Piasetski For the Respondent
Mr. Sam El-Khazen For the Respondent
SOLICITORS OF RECORD:
BENNETT JONES LLP
Barristers and Solicitors
Toronto, Ontario For the Appellants
PIASETSKI & NENNIGER LLP
Toronto, Ontario For the Respondent
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