Date: 20040728
Docket: T-2330-00
Citation: 2004 FC 1047
BETWEEN:
INCREMONA-SALERNO MARMI AFFINI SICILIANI
(I.S.M.A.S.) s.n.c. and DANZAS (CANADA) LIMITED
Plaintiffs
- and -
THE OWNERS AND ALL OTHERS INTERESTED
IN THE SHIPS "CASTOR" and "KATSURAGI",
THE SHIPS "CASTOR" and "KATSURAGI",
HAPAG-LLOYD CONTAINER LINE, GmbH
ATLAS TRAMPSHIP REEDEREI GmbH & Co. m.s.
CASTOR" KG and TAMA LAKE SHIP HOLDINGS SA
Defendants
Assessment Officer
[1] The Plaintiffs claimed damages and other relief arising out of the shipment of a consignment of polished granite from Italy to Canada. The parties agreed among themselves to seek a declaration as to whether the Marine Liability Act, s. 46(1) applied on the facts therein. On December 4, 2001, the Court ordered that said subsection did apply, gave certain directions to the Defendants and awarded costs against them in any event of the cause. Those Defendants associated with the ship "Katsuragi" (hereafter the "Katsuragi Defendants") appealed. On December 2, 2002, the Federal Court of Appeal allowed their appeal (in court file A-28-02), set aside the December 4, 2001 order of the Federal Court, declared that s. 46(1) did not apply and awarded costs in both courts to the "'Katsuragi Defendants". I issued a timetable for written disposition of the bill of costs of the "Katsuragi Defendants".
[2] The Plaintiffs conceded the disbursements claimed at $865.60. The Plaintiffs argued that the appearance on the motion heard November 19, 2001, lasted only two hours and not the four hours claimed meaning that the claim under item 6 should accordingly be reduced from 12 to 6 units. As this assessment of costs is straightforward, the claim under item 26 should be reduced from 3 to 2 units. In the absence of any justification, nothing should be allowed for item 27. The Plaintiffs argued that those reductions would leave $2,719.75 (inclusive of GST) as conceded for counsel fees.
[3] The Plaintiffs led reply evidence consisting of a letter dated December 19, 2003:
Katsuragi - Granite Slabs ... HLCUMIL 991202103... As per our telephone conversation earlier today, we confirm that our respective clients have agreed to settle the above matter on the basis that your clients pay our clients the sum of CAD 22,516.28, subject to each party bearing its own costs in relation to all proceedings thus far. Please confirm by signing this fax and returning it to us.
The exhibited letter bears an endorsement of agreement. The Plaintiffs argued that said evidence establishes that costs of all proceedings relating to the subject dispute were waived by said settlement in Germany given no other proceedings to which it could refer. The "Katsuragi Defendants" would violate said agreement if they attempt to enforce an order for costs in this jurisdiction and would in turn prompt the Plaintiffs to move this Court to enforce the settlement agreement.
[4] The "Katsuragi Defendants" asserted that their position has been and continues to be that any settlement reached in Germany did not preclude their entitlement to costs in the Federal Court and the Federal Court of Appeal matters and therefore any settlement reached in Germany is irrelevant in this assessment of costs. The enforceability of the "Katsuragi Defendants'"order for costs should be left for another day and another forum.
[5] The "Katsuragi Defendants" argued for item 6 that the Federal Court records confirm that the combined number of hours for the appearances on November 5 and 19, 2001, is four hours as claimed. Item 27 should be allowed on the basis of partial recovery of legal expenses associated with the vigorous positions advanced respectively by the parties in making new law.
ASSESSMENT
[6] The Encyclopedia of Words and Phrases Legal Maxims Canada, 47th Cumulative Supplement, March 2004, Volume 4: Q to Z, (Toronto: Thomson Carswell) indicates:
... A 'step' is in the nature of an application to the court; it is a matter in the general procedure of the action which advances the matter toward trial. It is not an application such as an application to set aside a writ of summons since that is not a 'step' in furtherance of the action... matters in the general procedure of the action which advance it from the beginning of the action to trial and are developments in the course of putting the action in such a condition that it can be dealt with by the court... the provision by a party of an affidavit of documents in response to a demand for discovery by an opposing party is a "step in the action" because it amounts to a discovery of documents. The form of such "discovery" is irrelevant to the working of the Rule. However, by the same reasoning, the delivery by one party to another of a mere demand for particulars is not a "step in the action"....
[7] The view in VMC Corporation v. Zodiac Ltée - Zodiac Ltd., [1977] 2 F.C. 183 at 185 (F.C.T.D.) was that "taking a 'step in a proceeding', as that expression is used in the Rules, involves doing, on the record of the proceeding in the Court, something required by the Rules to be done to advance the proceeding to a conclusion." I think that at least one inference from these authorities is that the continuum of litigation consists of steps, shaped by statutes, regulations or practice and distinct from one another in the sense of discrete occurrences or events.
[8] That there has been judgment in the litigation does not mean that subsequent interlocutory occurrences should be different in nature from those preceding judgment. That is, I do not think that such subsequent occurrences or events become commingled so as to lose their sense of being discrete relative to one another. Although it may be that the authorities supra, addressing the concept of step, did not have in mind occurrences subsequent to judgment such as applications for directions on costs, assessments of costs and writs of execution, I think it incontrovertible that these latter occurrences, if not steps in the sense contemplated by the authorities supra, must be viewed as distinct from one another. While the Plaintiffs' reply evidence might be seen as compelling, particularly given that documents in the court file disclose that the number of the bill of lading in issue matches the number in a settlement document in Germany coincidentally expressed in Canadian currency, and notwithstanding the absence of direct rebuttal evidence from the "Katsuragi Defendants" on the irrelevance of said settlement, I view the assessment of costs in these circumstances as a necessary step or occurrence to crystallize the dollar amount of the award of costs prior to any step to enforce said award. The latter would include disposition of issues such as the right to proceed in this jurisdiction. There likely are circumstances in which the presence of a settlement document would preclude my jurisdiction, but I conclude here that I should proceed with the assessment of costs.
[9] By order dated September 24, 2001, and further to a Notice of Status Review, the Court granted 30 days for the Defendants to serve and file a motion to seek a stay of proceedings on the basis of a jurisdiction clause in the bill of lading. The duration of the hearing on November 5, 2001, ie. three minutes, the consent orders of an even date adjourning the applications to November 19, 2001, the letter to the Registry dated November 5, 2001, which outlined certain background conditions forming the basis for the consent to delay the hearing until November 19, 2001, and the fact that the applications proceeded before a different judge on November 19, 2001 suggests to me that the applications could not be said to have commenced until November 19, 2001. Therefore, I will not allow any claim for November 5, 2001, because the adjournment order is silent as to costs. As for November 19, 2001, counsel must be present throughout a hearing. An appearance necessarily includes some time in the courtroom identifying oneself with the court registrar and waiting for the call of the case, none of which is preparation time addressed by other items. Therefore, the abstract of hearing is a useful, but not absolute, guide for assessing attendance at hearing. It discloses a duration of 2 hours 45 minutes. I allow 3 units per hour for three hours on November 19, 2001, under item 6. Further to my conclusions in Mitchell v. Canada (Minister of National Revenue - M.N.R.), [2003] F.C.J. No. 1530 (A.O.), I do not think that item 27 can be allowed simply as a function of the making of new law. I allow the minimum 2 units under item 26 in the circumstances here.
[10] The bill of costs of the "Katsuragi Defendants", presented at $4,649.60, is assessed and allowed at $3,940.10.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, BC
July 28, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2330-00
STYLE OF CAUSE: INCREMONA-SALERNO MARMI AFFINI
SICILIANI (I.S.M.A.S.) s.n.c. et al.
v.
THE SHIPS "CASTOR" and "KATSURAGI" et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: July 28, 2004
SOLICITORS OF RECORD:
Bromley Chapelski for Plaintiffs
Vancouver, BC
Bull, Housser & Tupper for the Owners and
Vancouver, BC All Others Interested in
the Ship "Katsuragi" et al.
Bernard & Partners for the Owners and
Vancouver, BC All Others Interested in
the Ship "Castor" et al.