Date: 20000712
Docket: T-636-99
Admiralty action in personam
BETWEEN:
TRADE ARBED INC.,
Plaintiff,
AND
TOLES LIMITED
-and-
RONLY HOLDINGS UK LIMITED,
Defendants.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] The Court has before it in the case at bar a motion for directions by the defendants pursuant to Rule 403 of the Federal Court Rules (1998) ("the Rules"), regarding the awarding of costs granted in the case at bar pursuant to an order by this Court on October 20, 1999.
[2] This motion also asks the Court to strike out the statement of claim in the record in its entirety. This aspect of the motion, namely the striking out of the action, is not contested and so this remedy will be granted.
[3] Rule 403 and its predecessor prior to April 1998, namely Rule 344(7), read respectively as follows:
| 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). |
| (2) A motion may be brought under paragraph 1(a) whether or not the judgment included an order concerning costs. |
| (3) A motion under paragraph (1)(a) shall be brought before the judge or prothonotary who signed the judgment. |
| 344. (7) Any party may |
| (a) within 30 days after judgment has been pronounced, or |
| (b) after the Court has reached a conclusion as to the judgment to be pronounced, at the time of the return of the motion for judgment, |
| whether or not the judgment included any order concerning costs, bring a motion before the Court to request that directions be given to the taxing officer respecting any matter referred to in this Rule or Rule 346. An application under this subsection in the Court of Appeal shall be made before the Chief Justice or a judge nominated by him, but either party may apply to a court composed of at least three judges to review the decision of the Chief Justice or the judge nominated by him. |
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 paragraph 394(2).
(2) La requête visée à l'alinéa (1)a) peut être présentée que le jugement comporte ou non une ordonnance sur les dépens.
(3) La requête visée à l'alinéa (1)a) est présentée au juge ou protonotaire qui a signé le jugement.
(My emphasis.)
344. (7) Une partie peut:
| a) dans les 30 jours suivant le prononcé d'un jugement, ou |
| b) après que la Cour a décidé du jugement à prononcer, au moment de la présentation de la requête pour jugement, |
que le jugement règle ou non la question des dépens, présenter à la Cour une requête demandant que des directives soient données à l'officier taxateur à l'égard des questions visées par la présente Règle ou par la Règle 346. Dans le cas d'une instance engagée devant la Cour d'appel, la requête visée au présent paragraphe doit être présentée au juge en chef ou à un juge qu'il désigne. Toute partie peut demander à un tribunal composé d'au moins trois juges de réviser la décision du juge en chef ou du juge qu'il a désigné.
[4] In the defendants' submission, the motion at bar is a logical consequence of my decision on October 20, 1999 by which I allowed with costs their application to strike the in rem portion fo the action filed by the plaintiff.
[5] After hearing counsel for the defendants on the instant motion, it is clear that his clients are dissatisfied with my order of October 20, 1999 on costs. In the defendants' submission, I should clarify that order somewhat by, essentially, amending it to provide that I am awarding costs to the defendants on a solicitor-client basis and, moreover, that under Rule 404 I am ordering one of the counsel for the plaintiff to pay the said costs jointly with his client.
[6] According to the defendants, as the Court found on October 20, 1999 that the in rem action was covered inter alia by s. 221(1)(f) of the Rules, it should now translate that conclusion into a clear message - namely by awarding much heavier costs - so that in future no party will abuse the process of the Court.
[7] Unfortunately for the defendants, in my view their motion is inadmissible and without basis for the following reasons.
[8] To begin with, I strongly doubt that Rule 403 is available when, as in the case at bar, the motion made under that rule relates to an order and not a judgment. If Rule 403 is read carefully, it can be seen that throughout it uses the word "judgment" and not "order"; or use of both words. Rule 2 defines the word "order" as including the word "judgment". However, the contrary is not true. Consequently, if Rule 403 speaks of a judgment it is because it does not intend to include an order. What was made on October 20 was an order. For this reason, it seems to the Court that the motion at bar is inadmissible.
[9] If I am in error on this first reason, I consider that the motion should still be dismissed since it is seeking to have the Court reopen a conclusion on which there is res judicata. What is being sought is not a clarification of a conclusion, it is an outright alteration. In fact, this is a disguised appeal from my order of October 20. In this regard, and contrary to what counsel for the defendants argued, I see nothing in the wording of Rule 403 that is substantially different from the wording of the old Rule 344(7). Consequently, the precedents developed under the latter rule are applicable in the case at bar.
[10] In Nordholm I/S v. Canada (1996), 107 F.T.R. 317, at 319, Gibson J. had to cite with approval his colleague Reed J. on the scope of Rule 344(7) in a situation similar to our own:
| In Stuart v. Canada, [1989] 5 W.W.R. 163; 27 F.T.R. 65 (T.D.), Madame Justice Reed considered a similar application to this one. With respect to subrule 344(7), she wrote: |
| It seems to me that subs. (7)(a) contemplates the giving of directions to a taxing officer within the confines of a judgment respecting costs which has been given but not the changing of that judgment itself. When no order of costs exists in the judgment which has been rendered, the situation may be different. What the defendant now seeks is not the giving of directions but the alteration of judgment. I do not interpret the wording of subs. (7) as authorizing this kind of fundamental change. What is more, rule 344(7) has to be read in the light of rule 337(5) ... |
[11] Although they deal with a rule different from the one at issue, I nevertheless adopt the following remarks by the Court in Nordholm I/S:
| I conclude that, in essence, counsel now seeks an opportunity to convince me that the terms of my judgment with respect to costs are simply wrong, or at least, inappropriate in all of the circumstances. Such an argument is proper subject matter for an appeal. |
[12] Additionally, it appears to the Court that the following observations, made more recently by the Federal Court of Appeal in Keramchemie GmbH v. Keramchemie (Canada) Ltd. (1998), 231 N.R. 386, are applicable in the case at bar:
| 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)). |
[13] Further, like Gibson and Reed JJ., I listened to counsel for the parties on the arguments they had to make on the substance of the motion, in the event that it is held that I erred in the foregoing reasons. As to the conclusions to be drawn from this exercise, the following observations of Gibson J. in Nordholm I/S seem entirely appropriate:
| 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. |
[14] Finally, with respect to the costs on the instant motion, suffice it to say that they go to the plaintiff under column III of the Tariff B table. Although I am tempted to award the said costs at a higher level, I must take into account that part of the instant motion was allowed.
[15] An order will be made accordingly.
Richard Morneau
Prothonotary
Montréal, Quebec
July 12, 2000
Certified true translation
Martine Brunet, LL. B.
Date: 20000712
Docket: T-636-99
MONTREAL, JULY 12, 2000
BEFORE: RICHARD MORNEAU, PROTHONOTARY
Admiralty actionin personam
BETWEEN:
TRADE ARBED INC.,
Plaintiff,
AND
TOLES LIMITED
-and-
RONLY HOLDINGS UK LIMITED,
Defendants.
O R D E R
With respect to the part of the application to strike in its entirety the statement of claim in the record, that part of the application is allowed.
The application by the defendants is otherwise dismissed, with costs to the plaintiff.
Richard Morneau
Prothonotary
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE No.: T-636-99 |
STYLE OF CAUSE: Admiralty action in personam
Between:
TRADE ARBED INC.,
Plaintiff,
AND
TOLES LIMITED
-and-
RONLY HOLDINGS UK LIMITED
Defendants.
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: June 28, 2000 |
| REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY |
| DATED OF REASONS FOR ORDER: July 12, 2000 |
APPEARANCES:
| George J. Pollack for the plaintiff |
| André Braën for the defendants |
SOLICITORS OF RECORD:
| Sproule, Castonguay, Pollack for the plaintiff |
Montréal, Quebec
| Marler & Associés for the defendants |
Montréal, Quebec
| Federal Court of Canada Trial Division Date: 20000712 Docket: T-636-99 Admiralty actionin personam Between: TRADE ARBED INC., Plaintiff, AND TOLES LIMITED -and- RONLY HOLDINGS UK LIMITED Defendants. REASONS FOR ORDER |