Date: 19991108
Docket: T-705-95
Ottawa, Ontario, the 8th day of November, 1999
Present: The Honourable Mr. Justice Pelletier
BETWEEN :
10133579 ONTARIO INC.
Plaintiff
- and -
BEDESSEE IMPORTS LTD.
Defendant
REASONS FOR ORDER and ORDER
[1] This is a dispute as to costs arising out of a trade mark dispute. The essential facts are that the plaintiff launched an action against the defendant claiming unauthorized use of its trademarks. The defendant defended and counterclaimed alleging ownership of some of the marks claimed by the plaintiff. Eventually, the defendant brought a motion for summary judgment. Summary judgment was granted with respect to four of the seven marks in issue. The defendant was awarded the costs of the summary judgment application.
[2] An appeal was taken. The Court of Appeal found that the motions judge was correct in his findings but that he had failed to deal with the issue of passing off, which the Court of Appeal saw as a distinct cause of action arising out of the statement of claim. The appeal was allowed in part and the matter was remitted to the motions judge to deal with the issue of passing off. The Court of Appeal held that since success was divided, there would be no order as to costs.
[3] The motions judge then reviewed the matter and found that, notwithstanding the Court of Appeal"s view of the matter, the question of passing off did not arise from the statement of claim. He therefore dismissed the defendant"s claim for summary judgment in that regard on the ground that "Since the plaintiff"s statement of claim does not seek a remedy under passing off, the defendant"s application for summary judgment in that regard was inappropriate..." . The motions judge did not refer to costs in his order.
[4] The issue is whether there is any order as to costs outstanding, and in favour of whom.
[5] The motion was brought by Ms. Persaud, who styled herself as the "Representative of the plaintiff 1013579 Ontario Inc." Ms Persaud is a principal of the company and is not a member of any law society. Rule 120 requires that a corporation be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave for it to be represented by an officer partner or member. As it appears that this is the last issue remaining outstanding between these parties due to a settlement agreement, I granted leave for Ms. Persaud to represent the corporation so as to bring this long-running saga to a conclusion.
[6] The order as to costs made by the motions judge on the first return of the motion remains in effect. It was not displaced by the order of the Court of Appeal which must be taken to be limited to the proceeding in that Court since it refers to success being divided. The subsequent order of the motions judge did not refer to costs. According to Orkin The Law of Costs (2nd Ed.)1998 at para105.7:
| Similarly if judgment is given for a party without any order being made as to costs, no costs can be assessed by either party; so that when a matter is disposed of on a motion or at trial with no mention of costs, it is as though the judge had said that he "saw fit to make no order as to costs" [citations omitted]. |
[7] In the end result, the plaintiff remains liable to the defendant for the costs arising out of the motion for summary judgment. Since the motion did not dispose of all the issues between the parties (the action was with respect to 7 marks, of which only four were the subject of summary judgment, and the counterclaim was not dealt with), the order with respect to costs must be taken to refer only to the costs of the motion, not the costs of the action.
ORDER
Upon reading the pleadings, the affidavit of Latchandai Persaud, and upon hearing the submissions of the parties;
IT IS HEREBY ORDERED THAT:
| 1- The defendant is entitled to the costs of the motion for summary judgment which are to be assessed. |
| 2- The defendant is entitled to the costs of this motion which are also to be assessed. |
"J.D. Denis Pelletier"
Judge