Date: 20020515
Docket: T-686-99
Neutral citation: 2002 FCT 564
Halifax, Nova Scotia, this 15th day of May, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
WIC PREMIUM TELEVISION LTD.
Plaintiff
- and -
ROY LEVIN a.k.a. ROY LEVINE, JOHN DOE, JANE DOE
and ANY OTHER PERSON OR PERSON FOUND ON THE
PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES
AT 1830 DUBLIN AVENUE, WINNIPEG, MANITOBA WHO
OPERATE OR WORK FOR BUSINESSES CARRYING ON
BUSINESS UNDER THE NAME AND STYLE OF ‘STARLINK',
‘STARLINK INC.', ‘STARLINK CANADA', ‘STARLINK MANITOBA',
OR ONE OR MORE OF THEM,
ROY LEVINE a.k.a. STAR « LINK CANADA (1998), STARLINK INC.
3563716 MANITOBA LTD. a.k.a. STAR « LINK MANITOBA and
3942121 MANITOBA LTD. a.k.a. STAR « LINK CANADA
SATELLITE SERVICE
Defendants
REASONS FOR ORDER AND ORDER REGARDING COSTS
[1] At the time I rendered my Reasons for Order and Order on the interlocutory injunction motion dated August 11, 2000, I reserved the right to deal with the issue of costs if the parties could not agree on the issue of costs.
[2] An appeal of my order was filed and that appeal has been withdrawn.
[3] The plaintiff wished to address the issue of costs orally, however, I am not prepared to grant this request. I allowed the parties to make submissions in writing.
[4] The defendants were successful in opposing the applicant's motion for an interlocutory injunction in this matter.
[5] The defendants have requested their costs in the dismissal of the interlocutory injunction motion.
[6] The plaintiff submits that the defendant, Roy Levin is not entitled to costs as a result of a bankruptcy from which he has been discharged.
[7] In Bankruptcy Law of Canada, looseleaf (Toronto: Carswell, 1984), The Honourable Mr. Justice L. W. Houlden and C. H. Morawetz stated at pages F-72.3 to F-73:
Delivering Judgment or Taxing Costs After Bankruptcy. Section 49(1) does not operate to prevent a court from delivering judgment in an action that has been fully tried before the defendant became bankrupt: Hunter Douglas Ltd. v. Kool Vent Awnings Ltd. (1958), 37 C.B.R. 154 (Que. S.C.). In Fairview Electronics Ltd. v. De Boer International ltd. (1983), 48 C.B.R. (N.S.) 102 (Ont. S.C.) a creditor was permitted to tax costs of an action that had been brought by the bankrupt and dismissed prior to bankruptcy without obtaining leave under s. 49(1). The court held that the taxation was merely a step to quantify a claim which had come into existence prior to bankruptcy.
I am satisfied that a cost order can be made with respect to the defendant, Mr. Levin, but I need not rule on who (i.e. a trustee in bankruptcy, a creditor, or Mr. Levin) is finally entitled to costs that in the cause might be awarded to Mr. Levin.
[8] The plaintiff further submits that with respect to the corporate defendants, no costs should be awarded or that costs be left to the trial judge.
[9] In Toronto Dominion Bank v. Canada Trustco Mortgage Co. (1992) 40 C.P.R. (3d) 68 (F.C.T.D.) Strayer J. stated at pages 69 to 70:
I am satisfied that costs should not be awarded now and that the appropriate order in such circumstances is that costs be in the cause. The Federal Court of Appeal stated this clearly in the case of Thurston Hayes Developments Ltd. v. Horn Abbot Ltd. (1985), 5 C.P.R. (3d) 124, 6 C.I.P.R. 75, involving a successful application by a plaintiff for an interlocutory injunction in a case of alleged trade mark infringement. In overruling an award by the motions judge of costs to the plaintiff for his successful application, the Court of Appeal said that (at p. 126):
. . . to make such an award at this stage, necessarily assumes that the appellants are guilty of, or are likely to be found guilty of, the infringements alleged by the respondents and, should be penalized therefor despite the fact that it is quite possible that they may successfully defend the action at trial.
Counsel for the defendant in the present case sought to distinguish this decision on the basis that it involved a successful plaintiff rather than a successful defendant at the interlocutory injunction stage. It appears to me that the rationale expressed in the passage quoted above would apply equally to a successful defendant, namely, that to grant him costs now assumes that he is going to succeed at trial. After trial it may well turn out that the plaintiff was fully justified in complaining of the defendant's activities. The Court of Appeal in its decision was, I believe, declining to treat the merits of the request for an injunction pending trial as separate from the merits of the action itself. On the basis of that rationale then the defendant should not normally have its costs on the interlocutory injunction regardless of the outcome of the case.
[10] In Enterprise Rent-A-Car Co. v. Singer [1999] F.C.J. No. 1687 (QL), MacDonald J.A. stated at paragraph 7:
. . . Even if Thurston Hayes is no longer a binding precedent, using the rationale expressed in it may be appropriate in circumstances where a costs award for an interlocutory injunction is reserved and is given after the completion of the main action.
[11] In light of the above jurisprudence, I am prepared to order that the costs of the motion shall be costs in the cause.
ORDER
[12] IT IS ORDERED that the costs of the motion shall be costs in the cause.
"John A. O'Keefe"
J.F.C.C.
Halifax, Nova Scotia
May 15, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-686-99
STYLE OF CAUSE: WIC PREMIUM TELEVISION LTD.
- and -
ROY LEVIN a.k.a. ROY LEVINE, JOHN DOE, JANE DOE and ANY OTHER PERSON OR PERSON FOUND ON THE PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES
AT 1830 DUBLIN AVENUE, WINNIPEG, MANITOBA WHO OPERATE OR WORK FOR BUSINESSES CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF ‘STARLINK',
‘STARLINK INC.', ‘STARLINK CANADA', ‘STARLINK MANITOBA', OR ONE OR MORE OF THEM, ROY LEVINE a.k.a. STAR « LINK CANADA (1998), STARLINK INC. 3563716 MANITOBA LTD. a.k.a. STAR « LINK MANITOBA and 3942121 MANITOBA LTD. a.k.a. STAR « LINK CANADA
SATELLITE SERVICE
DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Written Representations K. William McKenzie
Made By FOR PLAINTIFF
Written Representations Mr. Roy Levin
Made By On His Own Behalf
FOR DEFENDANT,
ROY LEVIN
SOLICITORS OF RECORD:
Crawford, McKenzie, McLean & Wilford
Orillia, Ontario
FOR PLAINTIFF
Mr. Roy Levin
c/o Winnipeg Local Office
4th Floor
363 Broadway
Winnipeg, Manitoba
R3C 3N9
FOR DEFENDANT,
Roy Levin
Fillmore Riley
Winnipeg, Manitoba
FOR DEFENDANT
On Behalf of Interested Parties
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020515
Docket: T-686-99
BETWEEN:
WIC PREMIUM TELEVISION LTD.
Plaintiff
- and -
ROY LEVIN a.k.a. ROY LEVINE, JOHN DOE, JANE DOE and ANY OTHER PERSON OR PERSON FOUND ON THE PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES AT 1830 DUBLIN AVENUE, WINNIPEG, MANITOBA WHO OPERATE OR WORK FOR BUSINESSES CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF ‘STARLINK', ‘STARLINK INC.', ‘STARLINK CANADA', ‘STARLINK MANITOBA',
OR ONE OR MORE OF THEM, ROY LEVINE a.k.a. STAR « LINK CANADA (1998), STARLINK INC.
3563716 MANITOBA LTD. a.k.a. STAR « LINK MANITOBA and 3942121 MANITOBA LTD. a.k.a. STAR « LINK CANADA SATELLITE SERVICE
Defendants
REASONS FOR ORDER AND ORDER