Date: 20001107
Docket: T-636-99
BETWEEN:
TRADE ARBED INC.
Respondent
- and -
TOLES LIMITED
and
RONLY HOLDINGS UK LIMITED
Appellants
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion for an order of this Court to set aside the order of the Prothonotary dated of July 12, 2000.
THE FACTS
[2] On October 20, 1999 the Prothonotary rendered an order setting aside the arrest of the cargo of Silico Manganese (the "Cargo") ex the Ship MACADO on the grounds that plaintiff had failed to establish a sufficient connection between the Cargo and the cause of action.
[3] The Prothonotary also based his decision on Rule 221.1(a), (b) and (f).
[4] Rule 221 provides:
| 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (a) discloses no reasonable cause of action or defence, as the case may be, (b) is immaterial or redundant, (c) is scandalous, frivolous or vexatious, (d) may prejudice or delay the fair trial of the action, (e) constitutes a departure from a previous pleading, or (f) is otherwise an abuse of the process of the Court, and may order the action be dismissed or judgment entered accordingly. Evidence 221(2) (2) No evidence shall be heard on a motion for an order under paragraph (1)(a). |
221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : a) qu'il ne révèle aucune cause d'action ou de défense valable; b) qu'il n'est pas pertinent ou qu'il est redondant; c) qu'il est scandaleux, frivole ou vexatoire; d) qu'il risque de nuire à l'instruction équitable de l'action ou de la retarder; e) qu'il diverge d'un acte de procédure antérieur; f) qu'il constitue autrement un abus de procédure. Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence. (2) Aucune preuve n'est admissible dans le cadre d'une requête invoquant le motif visé à l'alinéa (1)a). |
[5] The Prothonotary mentioned at paragraph 17 of his decision that the motion was granted with costs (my emphasis).
[6] In the motion to quash the arrest filed on August 28, 1999, it was mentioned at paragraph 8:
| The costs and expenses incurred by Ronly in respect to the irregular seizure of its property, including the costs of all representations before the Court, including this motion. |
[7] Even though that particular paragraph was in the motion before the Prothonotary when he rendered his decision on October 20, 1999, apparently there were no specific representations on the matter of costs at the hearing.
[8] On November 19, 1999, the defendants brought a motion to strike the statement of claim and the amended statement of claim and also a motion for an order awarding costs to the defendants on a solicitor-and-client basis and also an order directing J.K. Sproule, personally, to pay the costs to be awarded by the order requested.
[9] On July 12, 2000, the Prothonotary rendered a decision on that motion in which he granted the motion to strike out the statement of claim but rejected the two other elements relating to the costs.
[10] I will first address the reasons mentioned at paragraph 8 of the July 12, 2000 decision.
[11] Rule 403 states:
| 403. (1) A party may request that directions be given to the assessment officer respecting any matter referred to in rule 400, (a) by serving and filing a notice of motion within 30 days after judgment has been pronounced; or (b) in a motion for judgment under subsection 394(2). Motion after judgment 403(2) (2) A motion may be brought under paragraph (1)(a) whether or not the judgment included an order concerning costs. Same judge or prothonotary 403(3) (3) A motion under paragraph (1)(a) shall be brought before the judge or prothonotary who signed the judgment. |
403. (1) Une partie peut demander que des directives soient données à l'officier taxateur au sujet des questions visées à la règle 400 : a) soit en signifiant et en déposant un avis de requête dans les 30 jours suivant le prononcé du jugement; b) soit par voie de requête au moment de la présentation de la requête pour jugement selon le paragraphe 394(2). Précisions 403(2) (2) La requête visée à l'alinéa (1)a) peut être présentée que le jugement comporte ou non une ordonnance sur les dépens. Présentation de la requête 403(3) (3) La requête visée à l'alinéa (1)a) est présentée au juge ou au protonotaire qui a signé le jugement. |
[12] I have some difficulty to reconcile the premises of paragraph 8 of the Prothonotary's decision with the wording of Rule 403(2) of the Rules.
[13] Rule 403(2) is clear that a motion may be brought whether or not a judgment included an order concerning costs. (my emphasis)
[14] In my view, it is not necessary to consider whether this is a judgment or an order because the Rule itself includes both words.
[15] Addressing now the reasons mentioned at paragraph 9 of the Prothonotary's decision, I am not so convinced that there is "chose jugée".
[16] Again, referring to Rule 403(2), the motion may be brought whether or not the judgment included an order concerning costs. I agree with counsel's argument that the purpose of Rule 403(1) is to obtain precision in respect to costs and that a broad discretion is given to the Court by Rule 400 and the tariffs in respect of costs.(my emphasis)
[17] I was told by the parties that the question of costs was not discussed at the hearing, so, the mention in the decision that the motion is granted with costs cannot lead the Court to believe that there is "chose jugée", pursuant to Rule 403(2).
[18] In my view, those two reasons mentioned by the Prothonotary constitute an error of law and justify the intervention of this Court.
[19] Finally, the Prothonotary also mentioned that even if it was determined that he was wrong concerning the scope of Rule 403, regarding the results, he referred to comments made by Justice Gibson in Nordholm I/S v. Canada (1996), 107 F.T.R. 317, at page 319:
| As did Madame Justice Reed, in the event that I might be determined to be wrong on the question of jurisdiction, I heard argument from counsel for both the plaintiff and the defendant on the merits of the request. In the words of Madame Justice Reed: |
| I propose to address the issue for the sake of completeness. I have undertaken an examination of the [plaintiff's] request on its merits and am not persuaded that this is a case in which, if I had discretion, I should exercise it by granting the motion which is sought. |
| While in hindsight, I might have provided more elaborate reasons for my judgment with respect to costs, having heard the able argument of counsel for both parties, I would not have reached a different conclusion. |
[20] We have to conclude from that quote that if the Prothonotary had heard the able argument of counsel for both parties, he would not have reached a different conclusion, meaning a different conclusion of the decision he rendered on October 20, 1999.
[21] In my view, this conclusion should also be revisited.
[22] I believe that the Nordholm I/S decision should be distinguished because in Nordholm, Justice Gibson rendered a substantial decision which also dealt on the issue of costs:
| In light of the conclusions I have reached and the concerns that I have expressed regarding the conduct of both parties leading up to the collision between the `Nordpol' and the `Kootenay', there will be no order as to costs. |
[23] In Keramchemie GmbH v. Keramchemie (Canada) Ltd. (1998), 231 N.R. 386 at page 387, Justice Marceau, from the Court of Appeal, cites:
| Where we do not agree with the impugned decision is when it purports to subject to the exceptional and punitive ruling the four interlocutory orders made in the course of the proceedings. Indeed, we see no reason to disagree with the position taken by the court in Lubrizol corp. et al. V. Imperial Oil Ltd. et al. [1996] 3 F.C. 40; 197 N.R. 241; 67 C.P.R. (3d) 1 (F.C.A.), which stands for the proposition that a subsequent determination that costs already awarded in an order disposing of an interlocutory motion would have to be paid on a solicitor-client scale would constitute a departure from a significant component of an order that has become final and therefore would not be open to reconsideration except on appeal (see rule 344(6) and (7)). |
[24] I am also convinced that this case should be distinguished because in Keramchemie, supra we are facing again a decision where the issue of costs was thoroughly examined and where the Court concluded that costs should be paid on a solicitor-client scale which was part of the decision.
[25] In the case at bar, we are facing a situation where the motion of October 20, 1999 was "granted with costs". The Prothonotary did not specify what kind of costs he was awarding. I have no hesitation to consider that both parties were entitled to bring a motion pursuant to Rule 403 relating to costs, which was done.
[26] I have, now, to consider whether an order awarding costs to the defendants on a solicitor-client basis should be rendered in the case at bar.
[27] As I mentioned earlier, the Prothonotary rendered his decision based on the evidence presented to him which lead him to conclude that:
| ...the Statement of Claim and the affidavits filed in support of the arrest exhibit a "connection" as this term is used throughout the applicable jurisprudence referred to by both parties. Therefore, clearly and obviously the cargo cannot be considered the subject of the within action. |
[28] After, the Prothonotary mentioned that he made his decision pursuant to Rule 221(1)(a), (b) and (f).
[29] Pursuing to Rule 221, I have to conclude that the decision was rendered because the action at the time "discloses no reasonable cause of action or defence, as the case may be, is immaterial or redundant, and finally, is otherwise an abuse of the process of the Court".
[30] Counsel for the defendants clearly demonstrated that even though the seizures of cargo are common in maritime procedures, nevertheless, those are extraordinary procedures and constitute interference with somebody else's property in advance of any substantive right having been determined. Counsel for the defendants alleges that when that extraordinary procedure is determined as clearly and obviously wrong, immaterial or redundant, and an abuse of the process of the Court, it could be enough to justify the award for costs on a solicitor-client basis.
[31] Rule 400(1) provides:
| 400.(1) The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid. |
| 400.(1) La Cour a entière discrétion pour déterminer le montant des dépens, les répartir et désigner les personnes qui doivent les payer. |
[32] Among factors in awarding costs that the Court may consider, Rule 400(3), subparagraphs (i) and (k), provide:
| (i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding; (k) whether any step in the proceeding was (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; |
(i) la conduite d'une partie qui a eu pour effet d'abréger ou de prolonger inutilement la durée de l'instance; (k) la question de savoir si une mesure prise au cours de l'instance, selon le cas: (i) était inappropriée, vexatoire ou inutile, (ii) a été entreprise de manière négligente, par erreur ou avec trop de circonspection; |
and subparagraph 400(6)(c) provides:
| (c) award all or part of costs on a solicitor-and-client basis; |
(c) adjuger tout ou partie des dépens sur une base avocat-client; |
[33] I am convinced that this is a case which justifies the application of 400(6)(c).
[34] When a party is foreign and the procedure being applied is one which is of a technical nature, it is right to say that the foreign party would not be aware of the limits or dictates of the law in respect of the exercise of the procedure. It is also correct to state that the domestic lawyer has the responsibility to inform his client that the contemplated procedure is not appropriate. If the lawyer had advised the client, but the client wished the lawyer nonetheless to proceed, the lawyer could be seen as an accomplice in the perpetrated abuse of process, if it is the case.
[35] Even though pursuant to the Prothonotary's decision there was an abuse of procedure of the process of the Court, I am not convinced that Rule 404 should apply in this case, so, the request for an order to the respondent-solicitor J.K. Sproule to personally pay the said costs in accordance with Rule 401.1(a) is dismissed.
[36] For those reasons, IT IS ORDERED THAT:
| The Prothonotary decision of July 12, 2000 regarding costs be set aside; |
The appellants are awarded costs on a solicitor-client basis in accordance with Rule 400, regarding to the July 12, 2000 motion.
Regarding the present motion the appellants are awarded costs established to $400.00.
(Sgd.) "Pierre Blais"
Judge
November 7, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: T-636-99 |
| STYLE OF CAUSE: Trade Arbed Inc. |
v.
Toles Limited et al
| PLACE OF HEARING: Montreal, Quebec |
| DATE OF HEARING: October 23, 2000 |
REASONS FOR ORDER AND ORDER OF BLAIS, J.
| DATED: November 7, 2000 |
APPEARANCES:
| Mr. George Pollack For the Appellants |
| Mr. André Braën For the Respondent |
SOLICITORS OF RECORD:
Sproule Castonguay Pollack
Barristers and Solicitors
| Montreal, Quebec For the Appellants |
Marler & Associates
Barristers and Solicitors
| Montreal, Quebec For the Respondent |