Date: 20070403
Docket: A-448-05
Citation: 2007 FCA 135
BETWEEN:
SPECIALIZED
BICYCLE COMPONENTS CANADA, INC.
Applicant
and
GROUPE PROCYCLE INC. and
RALEIGH
CANADA LIMITED
Respondents
ASSESSMENT OF
COSTS - REASONS
Charles E. Stinson
Assessment Officer
[1]
The
Applicant discontinued its application for judicial review (addressing a
decision by the Canadian International Trade Tribunal concerning bicycle
imports). I issued a timetable for written disposition of the assessment of the
Respondents' bill of costs, presented further to Rule 402.
I. The Respondents' Position
[2]
The
Respondents referred to Rule 410(2) providing that, unless "the Court
orders otherwise, the costs of a motion for an extension of time shall be borne
by the party bringing the motion", and argued further to Maison des Pâtes
Pasta Bella Inc. v. Olivieri Foods Ltd., [1999] F.C.J. No. 213 (F.C.T.D.) [Maison
des Pâtes] that, as the Court has not ordered otherwise, the Applicant must
pay the Respondents' costs associated with four different motions to extend
time, regardless of the outcome of said motions. Generally relative to Rule
400(3)(i) (conduct unnecessarily lengthening proceedings), the record justifies
increased costs further to the Applicant's conduct, i.e. delay tactics so
flagrant as to elicit a Notice of Status Review to show cause for delay.
Relative to Rule 400(3)(g) (amount of work), the record indicates that the
Applicant's conduct caused excessive work for the Respondents, i.e.
considerable correspondence addressing submissions and procedural disagreements
beyond the scope of motion records. Relative to Rule 400(3)(e) (offer to
settle), the Respondents' good faith offer to settle costs at $9,150.50, less
than one-half of the actual amount incurred, was met with the Applicant's unreasonable
counteroffer of only $300.00. These various factors justify the Respondents'
claimed costs of $9,487.85.
[3]
The
Respondents argued that the Applicant's cited authorities address circumstances
in which the Rules are silent on costs and are therefore irrelevant given the
mandatory language of Rule 410(2) dictating the costs consequences associated
with motions to extend time. The Applicant's submission, i.e. that Rule 410(2)
is not applicable because the requests for time extensions were coupled with requests
for other heads of relief, is not correct in law because the real purpose of
each motion was the time extension. It is nonsense to suggest that a litigant
can ignore filing deadlines stipulated by the Rules, put opposing litigants to
the costs of responding to the consequent motions and then avoid the costs
consequences of Rule 410(2) simply by adding an additional prayer for relief to
a motion to extend time. As well, the Applicant's cited authorities are
irrelevant because they do not address the costs consequences associated with
Rule 402. Counsel fee item 5 does not require that the Court make an order
allowing the costs to oppose motions.
II. The Applicant's Position
[4]
Generally,
the Applicant asserted that the only formal activities in the record, apart
from the Applicant's instituting document and the Respondents' notice of
appearance, were the Applicant's notices of motion. The Respondents did oppose
them and the relief sought was generally granted, but without any costs being
awarded for any of them. On that basis, the Applicant had offered a nominal
amount of $300.00, there being nothing from the Respondents justifying a higher
entitlement, for discontinuance in lieu of assessed costs. The Respondents'
submissions acknowledged that most of their costs related to the Applicant's
various motions. Nothing should be allowed for item 2 (application record)
because this proceeding had not advanced far enough for the filing by either
side of application records and memoranda of fact and law on the merits of the
judicial review, which was discontinued before it was set down for hearing. The
Applicant asserted that the need for motions to regularize service on foreign
entities did not equate to delay tactics and noted the lack of evidence of
alleged delaying conduct. The federal government abandoned the decision in
dispute, quite apart from the application for judicial review.
[5]
The
Applicant noted that its ex parte notice of motion dated October 11,
2005 for substitutional service on several manufacturing entities in Asia and
on certain foreign governments included a request for an extension of time
beyond the available time in the Rules and was granted by order silent on costs.
Its notice of motion dated December 12, 2005 for a delay in filing the application
record pending certain other relief relating to consolidation of proceedings
and for a further extension of time for service on certain foreign governments
(subjects of the earlier motion) was largely granted by order silent on costs.
The Respondents' submissions in opposition had asked for costs of said motion.
Its notice of motion dated February 22, 2006, for eight distinct heads of
relief, i.e. consolidated hearing with two other court files and related
procedural relief, the last of which was a further extension of time for
service on the foreign governments, was largely denied by order silent on costs.
Its notice of motion dated April 27, 2006, for substitutional service on the
government of Taiwan and a
further related extension of time for service was granted by order silent on
costs.
[6]
The
Applicant referred to a number of authorities indicating that costs are not
assessable further to orders silent on costs, i.e. Balisky v. Canada (Minister
of Natural Resources), [2004] F.C.J. No. 536 (A.O.) at para. [6]; and Aird
v. Country Park Village
Properties (Mainland) Ltd., [2005] F.C.J. No. 1426 (A.O.) at para. [10], (plus
a number of others relying on Balisky and Aird above). Other
authorities have held that an interlocutory order silent on costs means that no
costs have been granted to a party, i.e. Merck & Co., Inc. v. Apotex
Inc., [2006] F.C.J. No. 798 (F.C.) affirmed [2006]
F.C.J. No. 1491 (F.C.A.), and Janssen-Ortho Inc. v. Novopharm Ltd.,
[2006] F.C.J. No. 1684 (F.C.). Rule 410(2) does not negate this latter
statement of principle. Rather, it simply provides that, relative to
applications for extensions of time, the Court should not apply the general
principle that costs follow the event (See You In-Canadians Athletes Fund
Corp. v. Canadian Olympic Committee, [2006] F.C.J. No. 992 (F.C.) [See
You]). In any event, Rule 410(2) does not apply because each motion was not
restricted to a single request for an extension of time, but rather each also
sought other distinct and more significant heads of relief.
[7]
The
Applicant argued alternatively that, if Rule 410(2) is found to apply to any of
these motions, Maison des Pâtes above does not stand for the proposition
advanced by the Respondents, i.e. as the Court has not ordered otherwise, the
Applicant must pay the Respondents' costs associated with each motion. Rather,
the Court at most (paras. 13-15 inclusive) indicated that the moving party is
not by default entitled to costs. Perhaps the Court should have awarded Rule
410(2) costs to the Respondents here. Perhaps the Court felt that the
Respondents' conduct mitigated against such awards. The remedy for the
Respondents might have been appeals or motions to vary, but certainly per Balisky
and Aird above, they cannot obtain such relief via this assessment of costs.
The Applicant's settlement offer of $300.00 for costs exceeds any entitlement,
including disbursements, available in the tariff for the Respondents' notice of
appearance. Accordingly, as this assessment of costs was unnecessary, the
Respondents should not get item 26 (assessment) costs and instead the Applicant
should get its costs further to Rule 408(3), i.e. $434.60 ($360.00 for item 26
+ $74.60 for photocopies and GST).
III. Assessment
[8]
Subsequent
to the materials filed further to my timetable, counsel for the Applicant
expressed concerns about the accuracy of summaries of its materials in the
Respondents' submissions. Although the correspondence from both sides refers to
a decision of mine, i.e. Morris v. Canada, [2005]
F.C.J. No. 2120 (A.O.), which could be characterized as indicative of a
predisposition on my part, I have not summarized their respective positions in
this correspondence as the analysis below represents the first occasion in
which Rule 410(2) has been in issue before me. I think that the phrasing of
Rule 410(2), which reads that unless "the Court orders otherwise, the
costs of a motion for an extension of time shall be borne by the party bringing
the motion", could give rise to certain diverse scenarios.
[9]
Assuming
that the term "costs of a motion" does not contain restrictive
language precluding the liability of the moving party for the costs of the
opposing party (the responding motion party), the sense of said term could be
inclusive of the costs for both sides. Rule 400(1) provides that the Court has
"full discretionary power over…allocation of costs and the determination
of by whom they are to be paid." The case law generally requires that the
Court exercise its broad Rule 400(1) discretion further to the principle that
costs follow the event. The balance of Rule 400 does not modify or restrict
said Rule 400(1), but it does clarify certain areas of jurisdiction. However,
Rule 410(2) could be said to restrict or modify the Court's broad Rule 400(1)
discretion by presuming the result for the Court, although leaving it open for
the Court to depart from said presumed result. Another scenario is that Rule 410(2),
apart from its residual discretion for the Court to order otherwise, completely
usurps the Court's Rule 400(1) discretion, meaning that the moving party must by
default pay, regardless of outcome, the costs of the responding motion party
(this is essentially the Respondents' position here). Another scenario and
assuming that Rule 410(2) refers only to the moving party's costs, is that, apart
from its residual discretion, Rule 410(2) precludes the Court from ordering that
the responding motion party pay the moving party's costs. Assuming that the
circumstances of an extension of time are generally so straightforward as to
not warrant their own Rule apart from the broad jurisdiction already in Rule
400(1), Rule 410(2) could function to directly rebut the presumption that costs
follow the event. It could be that the drafters of the Rule felt that a strong
statement of principle was necessary to account for frequent circumstances in
which the Court would be inclined in the interests of justice to grant
extensions, but free of the binding case law for costs weighted against a
responding motion party having no real control over the underlying
circumstances giving rise to the motion.
[10]
A
point of comparison of the term "costs forthwith" in Rule 402
(payable to the party against whom a proceeding has been discontinued) with the
term "costs of a motion" in Rule 410(2) is that both Rules permit the
Court to order otherwise. An apparent dissimilarity is that Rule 402, although
not specifically referring to the discontinuing party, clearly makes said party
responsible for paying the costs of the other side. A visible order of the
Court is not a prerequisite for assessment of those costs. Rule 410(2) mentions
only one side, i.e. the moving party, and is silent as to the other side, i.e.
the responding motion party. That is, Rule 410(2), compared to Rule 402 and the
notion of the discontinuing party, is more obscure relative to the notion of
the liability or responsibility of the moving party to pay the costs of the
responding motion party.
[11]
These
scenarios are complicated by considering them from the perspective of other
Rules on costs additional to Rule 400(1). For example, Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules (the Immigration Rules)
provides that no "costs shall be awarded to or payable by any party in
respect of an application…under these Rules unless the Court, for special
reasons, so orders." This seems to be an unambiguous provision addressing
both sides and it includes language, more restrictive however than Rules 402
and 410(2), permitting the Court to do otherwise. Of interest is the editorial
note in Brian J. Saunders et al., Federal Courts Practice 2007, (Toronto: Thomson
Carswell, 2006), at page 1124, stating that "Rule 22 displaces the broad
discretion as to costs under Rule 400 of the Federal Courts Rules."
Rule 4(1) of the Immigration Rules provides that "except to the
extent that they are inconsistent with…these Rules, Parts 1…and 11…of the Federal
Courts Rules apply…." I do not read Rule 4(1) as making the operation
of Rules 400 (Federal Courts Rules) and 22 (Immigration Rules)
relative to one another different from the operation of Rules 400 and 402 (Federal
Courts Rules) relative to one another or even Rules 400 and 410(2) relative
to one another. That is and with respect, I am not convinced that it could be
said that Rules 22, 402 and 410(2) completely displace the broad discretion as
to costs under Rule 400 of the Federal Courts Rules because I think that
it is still Rule 400(1) that confers upon the Court, in making any order within
the excepting language of the given Rule, the authority to peg costs somewhere
along the continuum from the default provision in Rule 407 for Column III costs
(or below that level) to full solicitor-client costs, i.e. the level or extent
of indemnification for costs.
[12]
In
Richards v. Canada (MNR) (2005), 268 F.T.R. 29 (F.C.), the Court
addressed an appeal of an assessment officer's decision on costs. An
application for judicial review relative to the Privacy Act had been
dismissed by order silent on costs. Regardless, the Respondent presented a bill
of costs for assessment further to the Privacy Act, s. 52(1) providing
that "…costs…shall be in the discretion of the Court and shall follow the
event unless the Court orders otherwise." The assessment officer, after
careful analysis, decided that there was no authority to assess costs in the
face of an order silent on costs. The Court found otherwise:
[11] I have concluded
that the Assessment Officer erred and that the Bill of Costs should be sent
back to him for taxation because, as a matter of law, Lemieux, J.'s order is
deemed to have included an order for costs.
[12] The basic premise
is that the award of costs is discretionary. Rule 400(1) and (2) provide: …
[13] If a judgment does
not include an order concerning costs, a party may request directions pursuant
to Rule 403.
[14] However, the
governing Act, or Regulations, may contain default
provisions with respect to costs. Section 52 of the Privacy Act is such
a default provision. Since a court already has the inherent jurisdiction to
grant costs to an unsuccessful party, or to or against a third party, and, for
that matter, occasionally even against a non-party, section 52 has to be taken
at its face value.
[15] Another default
rule, but to the opposite effect, is Rule 22 of the Federal Court
Immigration and Refugee Protection Rules, which provides: …
[16] Because of this
rule, orders in immigration and refugee cases normally do not mention court
costs. It is not necessary to say "there shall be no order as to
costs" or "each party shall bear its own costs" because the Rules
already so provide unless the Court derogates therefrom.
[17] For these reasons,
the motion is granted and the matter is referred back to the Assessment Officer
for an Assessment of Costs. However, since there was no guiding case law
directly on point, there shall be no costs on this motion itself.
Rule 410(2) cannot be directly compared to
section 52 or Rule 22 because of certain differences in wording, i.e. costs
following the event or mention of both sides, but its wording is not so
different from the latter two as to render it incapable of also being described
as a default provision within the meaning of Richards above. As well, that
the phrase "each side shall bear its own costs" was not used instead
of this phrase in Rule 410(2), "costs…shall be borne by the party bringing
the motion", reinforces or implies the notion that Rule 410(2) intends
that the moving party pay the costs of the responding motion party, the only
question being whether it is a default provision within the meaning of Richards
above or is a visible order of the Court a prerequisite.
[13]
Rule
293, addressing exaggeration of claims in simplified actions, provides that the
Court may award costs against any party. The editorial note in Federal
Courts Practice 2007, above, at page 666 indicates that the Court may in
awarding costs and per Rule 400(3)(n) consider this factor relative to the
simplified action rules. This is consistent with my view that certain rules may
act to modify or clarify, i.e. entitlement to costs, the operation of Rule
400(1), but do not otherwise limit the broad discretion in Rule 400(1), i.e.
level of indemnification. Rule 299.41(1) bars the Court from awarding class
action costs except as permitted by ss. (2) and (3). The editorial note in Federal
Courts Practice 2007, above, at page 690, asserts that this "displaces
the Court's usual broad discretion as to costs." I do not think that this
helps in construing Rule 410(2).
[14]
Rule
465(3), addressing costs of a party or non-party associated with funds and
enforcement of orders, simply modifies or clarifies Rule 400(1) and does not
assist in construing Rule 410(2). The same can be said about Rule 472(f)
addressing contempt of court. Rule 494 provides that a caveator (who can be a
non-party) is liable for costs and damages resulting from the caveat unless it
can satisfy the Court that it should not be liable therefor. The potential for
costs and damages considerably greater than the costs of a motion to extend
time likely means that this is not a default obligation to pay the other side,
and instead requires an intervening finding by the Court. That is, the phrase "is
liable to payment" in Rule 494 is not broad enough on its own to
constitute a default entitlement and instead requires a visible order of the
court particularly because of the imposed onus on the caveator of damages.
[15]
The
decision of the assessment officer, reported at [1998] F.C.J. No. 1171 (A.O.),
being appealed in Maison des Pâtes above found that, in the absence of a
visible order for costs relative to an application to extend time, the moving
party could not claim its costs from the responding motion party and must bear
said costs itself. The assessment officer did not, and the Court sitting in
appeal and approving his findings also did not, analyse Rule 410(2) on its
potential as a default obligation for the moving party to pay the responding
motion party's costs. This case does not help the Respondents' position here
because the consideration there appeared to be that an award of
solicitor-client costs as a consequence of discontinuance of the expungement
proceeding could not be stretched to include the motion for an extension of
time.
[16]
Although
it was not raised before me, I note that the Federal Court in Maison des
Pâtes above, based on certain Ontario case law, found (decision dated
February 12, 1999) that the assessment officer had erred in law by not finding
that the order for solicitor-client costs had the effect of "topping
up" a previous interlocutory award of lump sum costs. The rationale, as I
understand it, was that although the matter of interlocutory party and party
costs was conceded as res judicata, parties might refrain from properly
seeking costs of a motion so as to preserve the right, to be asserted later as
part of a judgment on the substantive issues of the litigation, to
solicitor-client costs for the entire proceeding, specifically to extend back
and include said interlocutory applications. In other words, and using the
circumstances in Maison des Pâtes above as an example, the Court's first
award there (interlocutory) of lump sum party and party costs of $3,500.00 could
be topped up by the subsequent award (final) of solicitor-client costs for the
entire proceeding on the basis that the judge making the latter award was in a
better position than the judge making the former award to gauge the relevance
of the interlocutory proceeding for the overall result. With respect, and I
note this simply to reinforce my views on the effect of interlocutory awards of
costs, I cannot agree. One of the cases cited by the Applicant here for the
proposition that no assessed costs are available further to orders silent on costs
was Merck & Co. v. Apotex Inc. above. There, the Federal Court
purported to "top up" costs by amending or varying existing interlocutory
awards of costs, deemed to be at the Column III level per Rule 407, by
directing that they be taxed and paid at the upper end of Column IV. On appeal,
the Federal Court of Appeal (decision dated October 10, 2006, above) relied on
certain case law, including Aird, above, to find that such "topping
up" was precluded because the subject interlocutory awards of costs were res
judicata.
[17]
In
See-You above, the Federal Court addressed and dismissed an appeal by
the responding motion party of a prothonotary's order allowing an extension of
time to file an application record and directing that no costs were payable on
the motion. Neither the Prothonotary nor the Court on appeal stated that Rule
410(2) granted the responding motion party a default entitlement to its costs
in the absence of an order otherwise. Rather, as the Prothonotary's decision
specifically asserted a refusal to award costs against the moving party because
of certain conduct of the responding motion party, a presumption, not at all
apparent, might be that the Prothonotary acknowledged Rule 410(2) as a default
obligation for the moving party to pay the responding motion party's costs and
made the requisite order within the excepting language of Rule 410(2) to
override said obligation. This is speculation of no help to the Respondents
here.
[18]
There
are two cases of note in Federal Courts Practice 2007 above at p. 895.
The Federal Court's decision in Cross-Canada Auto Body Supply (Windsor) Ltd. v.
Hyundai Auto Canada, a division of Hyundai Motor America, [2005]
F.C.J. No. 1527 (F.C.), began by stating that this "is an appeal from the
order of Prothonotary…wherein he granted the Respondent an extension of time to
file a Notice of Appearance, and failed to award costs to the Applicants."
The Court dismissed that portion of the appeal addressing the time extension
itself. However, at para. [13], the Court addressed costs by stating that
"I do not see why the Prothonotary deviated from Rule 410(2)", the
"party applying for an extension should normally bear the costs of the
motion" and the "fact that the Applicants brought a motion for
default judgment does not disentitle them from costs." The Court then
awarded costs of the motion to extend time to the responding motion parties
before the Prothonotary. This recent finding (decision dated September 14,
2005) does not assist the Respondents' position here. That is, the notion of
Rule 410(2) as a default obligation for the moving party to pay the responding
motion party's costs did not occur. Instead, said decision continued the notion
that a visible award of costs is necessary, entitlement thereto however being
weighted strongly in favour of the responding motion party.
[19]
In
Canadian Olympic Assn. v. Olymel, Société en Commandite (2001), 11
C.P.R.(4th) 378 (F.C.), the Federal Court allowed a motion for an
extension of time to file an appeal and ordered the moving party to pay lump
sum costs of $1,500.00 to the responding motion party. There is nothing to
indicate that the Court considered the notion of Rule 410(2) as not requiring a
visible order that the moving party pay the Column III costs (prescribed by
Rule 407) to the responding motion party. The lump sum aspect of the award of
costs was, in my opinion, simply a function of its broad Rule 400(1) authority
for level of indemnification undiminished by the modifying effect of Rule
410(2) addressing entitlement.
[20]
To
clarify my understanding of my authority relative to an apparent practice of
the Court, i.e. the necessity for a visible order that the moving party pay the
Rule 410(2) costs of the responding motion party, in the face of an apparently
(in my view) reasonable alternative advanced here by the Respondents, i.e. Rule
410(2) by default requires, without the necessity of a visible order, that the
moving party pay the Rule 410(2) costs of the responding motion party, I read Halsbury's
Laws of England, 4th ed. , reissue vol. 37 (London: Butterworths,
2001) at pages 9 to 22, paras. 1 to 14 inclusive, i.e. the "Introduction
to Practice and Procedure". Paragraph 1 asserts civil procedure law as a
distinct branch of law, including practice and procedure. Paragraphs 3 and 4
address the relationship between substantive law, i.e. that creating the rights
and obligations embodied in the law, and civil procedure law, i.e. that which
is the machinery or manner of application and enforcement of the substantive
law. Paragraph 4 speculates that perhaps "the term 'practice' is narrower
than the term 'procedure', since practice may be limited to the habitual,
repetitive or continuous use of practical methods or modes of proceeding,
whereas 'procedure' refers to the mode or form of conducting judicial
proceedings, whether they be to the whole or part of the suit" and notes
that the "distinction may rarely be invoked, since the terms are almost
invariably used in conjunction."
[21]
Paragraph
13 reads:
13. The practice of the
court. A
rather undefined source of civil procedural law is the practice of the court,
not expressed in practice directions nor in any particular case, but a course
of proceedings which has been followed over a period of time by successive
judges1. To some
extent, 'the practice of the court' has been recognised by statute as a source
of civil procedural law2. It is, however, not easy to define what
is the practice of the court or how it is to be ascertained, and, in any event,
it is thought that it would be open to a judge to come to a conclusion which
may differ from what he may be told or knows to be the practice of the court3…
1 See
Salm Kyrburg v Posnanski (1884) 13 QBD 218, DC, where both Huddleston B
and Grove J supported their judgments on appeal from an order of the judge in
chambers giving leave to issue a writ of attachment by saying that they were
informed by the masters that that was a general practice that had been followed
since the Supreme Court of Judicature Act 1873, and Grove J added, at 224,
'This, of course, is not conclusive on us, but it seems to me to afford an
argument to the extent that it is a reason for not interfering with the
actually existing practice unless the arguments against it strongly
preponderate'. See also Stumm v Dixon & Co and Knight (1889) 22 QBD
529 at 531, CA; Davies & Co v André & Co (1890) 24 QBD 598, CA; Hume
v Somerton (1890) 25 QBD 239; Harbottle v Roberts [1905] 1 KB 572,
CA; Re Mercantile Lighterage Co Ltd [1906] 1 Ch 491; Morison v Telfer
[1906] WN 31. The old maxim was that 'the practice of the court is the law of
the court', and it reflected the principle that the court is always slow to
depart from an established practice.
2 See
the Supreme Court Act 1981 s 67, which provides that business in the High Court
is to be heard and disposed of in court (ie in open court or in public) except
in so far as it may under that or any other Act, under rules of court or in
accordance with the practice of the court, be dealt with in chambers or in
private. Although it is placed on the same footing as the rules of court, the
phrase 'the practice of the court' is not defined, or even described, and it
remains a somewhat vague and obscure, if not ambiguous, term…
3 See
Adlington v Conyngham [1898] 2 QB 492, CA….
[22]
The
decision in Re Mercantile Lighterage above, addressing a practice of the
taxing master for costs, found among other things that the practice was not in
accord with the subject rule and referred the taxation back to the registrar
accordingly. At page 497, Warrington J. stated that he "need not say that
I have been reluctant to interfere with a practice which has been so long
established, but when there is, as I think, a plain construction of a rule, I
consider it my duty to give effect to it."
[23]
The
decision in Adlington above addressed a practice of the taxing master
that costs for examinations in aid of execution were not payable by judgment
debtors as such examinations were considered luxuries to be borne by judgment
creditors. It was cited in Halsbury's above to support the proposition
that a judge might conclude differently from the known practice of the court.
With respect, the Court of Appeal had already dismissed the appeal as
statute-barred and, in obiter comments, seemed simply to be expressing
bewilderment over said practice. However, the tenor of its remarks could be
read as supporting the proposition in Halsbury's above.
[24]
I
acknowledge that the statutory and regulatory framework underlying the
propositions asserted in Halsbury's above differs from that before me,
but they are not so different as to render said propositions irrelevant in my
considerations. Quite simply, and recalling my comments for Richards,
above, I think that an acceptable reading of Rule 410(2) would be that it
imposes a default obligation on the moving party to pay the costs of the
responding motion party without the necessity of a visible order to do so.
Unfortunately for the Respondents here, the practice to date indicates the
opposite, i.e. that although entitlement to costs is weighted in favour of the
responding motion party, a visible order to pay them is necessary. I think that
a factor raised here by the Applicant, i.e. that Rule 410(2) surely could not
be intended as a default obligation in circumstances in which the request for
time is a relatively minor head of relief among several more substantive ones, might
be relevant, but in the context of the excepting language of the Rule. With deference
to the presumption in the practice embodied in the decisions to date, but with
considerable reluctance given my analysis above, I conclude that I should not
depart from said practice. I disallow the Respondents' costs as they relate to
the four motions, i.e. items 5 and 21(a), as the circumstances of the issue
before me were not distinguishable from those underlying said practice..
[25]
My
comments in Nature's Path Foods Inc. v. Country Fresh Enterprises Inc.,
[2007] F.C.J. No. 151 (A.O.) at paras. [20], [21] and [23] apply and shape my
approach to the balance of the Respondents' bill of costs. That an item 2
application record is never filed does not mean that work on it by counsel
could not have occurred. I allow the minimum 3 units ($120.00 per unit). In Air
Canada v. Canada (Minister of
Transport),
[2000] F.C.J. No. 101 (A.O.), I considered the circumstances for allowing item
28 (services of paralegals etc.), claimed here for the application record and
the motions. I find that the record does not support any allowances. The
difficulties posed by this assessment of costs were not the Respondents' fault.
Their submissions were well formulated. I allow item 26 (assessment of costs)
as presented at the maximum 6 units. Disbursements for the proceeding as a
whole were claimed at $520.25 (printing, facsimiles, telephone, deliveries and
miscellaneous, some of which would have addressed the disallowed motion claims),
which I allow at $95.00. The Respondents' bill of costs, presented at
$9,487.85, is assessed and allowed at $1,239.80.
"Charles
E. Stinson"
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