Date: 19991214
Docket: T-778-99
BETWEEN:
UNITED PARTS OF FLORIDA INC.,
RODY TRUCK CENTER CORP., and
DENNIS MUNDAY,
Plaintiffs,
- and -
RICHARD M. CRAWFORD,
and the owners and others interested in
the ships formerly known as "HMCS FUNDY",
"HMCS THUNDER", "HMCS RESTICOUCHE",
AND "HMCS KOOTENAY",
Defendants.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons deal with the costs of a motion to permit the Department of National Defence (the "D.N.D.") to go aboard two destroyers, recently sold by the D.N.D., so the ships might be demilitarized. There is substantial relevant background.
[2] The destroyers Resticouche and Kootenay, formerly Canadian naval vessels, but sold as surplus and under arrest by the Court, were ordered sold pendente lite. Subsequently, on 1 November 1999, a sale was approved, subject to the removal of a condition, which removal was accomplished 2 November 1999, with the transfer to take place and the ships to be delivered to off-shore purchasers, on the 15th of December 1999. An Order of 24 November 1999, setting out the balance of the terms of the sale and the form of the Commission for Sale, made it clear that the sale was "... without military appurtenances which are to be removed by the Canadian military...".
[3] The sale was arranged by the Plaintiffs, who had brought two reasonable offers to the Court. This order as to costs arises out of a subsequent motion, by the Plaintiffs, to allow the D.N.D. access to the Resticouche and the Kootenay in order to remove military equipment which the D.N.D. had previously overlooked, including a rocket launcher. The motion was unsuccessfully opposed by the Defendant, Richard Crawford. Mr. Crawford believed he had initially purchased the Resticouche and the Kootenay from the D.N.D. in a demilitarized state. Mr. Crawford"s claim to be owner of the two ships was opposed by the Plaintiffs. As I have indicated, the Court allowed an arrest of the ships and, on being convinced that an early sale was essential, ordered and approved the sale pendente lite to off-shore buyers.
[4] Subsequent to the sale by the D.N.D., either to Mr. Crawford or to the Plaintiffs, Mr. Crawford, on determining that there was still military equipment aboard, perhaps looked upon the windfall of the equipment as a means of recouping something of the fairly modest purchase price of $113,055.50 paid for each ship. In any event, Mr. Crawford refused to let the D.N.D. go aboard to catalogue the equipment, plan its removal and then remove the equipment, not to mention to also investigate how the military equipment, including the rocket launcher, came to be left behind during earlier decommissioning by the D.N.D.
[5] From the material it is clear that the D.N.D. was prepared to document what they removed so that any equities between the D.N.D. and Mr. Crawford might be resolved. However, with the completion date of the sale and the delivery of ships to the new owners fast approaching, the Plaintiffs, at who"s behest the sale had been accomplished, were forced to come back to the Court to break the stand-off between Mr. Crawford and the D.N.D. so that the Court ordered sale might proceed.
[6] Where Mr. Crawford went astray, in preventing the D.N.D. from coming aboard, was that on the Court ordered sale of the ships, which had taken place, Mr. Crawford, as a possible owner, had no in rem interest in the ships, or their appurtenances, which he might perhaps use as a basis for his possessory actions. Rather, once the Court ordered sale was in place, Mr. Crawford could only look to the sale proceeds, and possibly to the D.N.D. if, as a subsequently established initial purchaser of the Resticouche and Kootenay from the D.N.D., he had some form of a contractual claim.
[7] At the conclusion of the motion I allowed the D.N.D. to board the Resticouche and Kootenay to, among other things, remove or disable the military equipment, for it was not only imprudent to allow the sale of the ships complete with military hardware, but also the ships had been ordered sold without that equipment. Moreover, I was not about to let the Court and the sale it had ordered be held hostage by reason of a contractual dispute between Mr. Crawford and the D.N.D. I awarded costs to the Plaintiffs, the amount to be determined following consideration of written submissions from counsel.
[8] The Plaintiffs now seek $1,200 in costs, being 5 units of preparation time for the access motion, 6 units for the 3 hour motion, and 1 unit for the preparation of the written submissions as to costs.
[9] The Defendant, Richard Crawford, submits that an award of $450.00 in costs would be sufficient, on the basis of various arguments, including that the hearing was extended because the D.N.D. tried, on short notice, to be added as an intervenor, because one of the affidavits relied upon by the Plaintiffs had been prepared by the D.N.D. and because the D.N.D. were allowed to go aboard on terms.
[10] Here I would note that the D.N.D. had offered terms which would have adequately protected Mr. Crawford, but that some of Mr. Crawford"s requests, as put to me in the motion, went beyond the reasonable. But that is not the point, for Mr. Crawford had no basis upon which to hold up a Court ordered and approved sale. Here I turn to the concept of costs as a deterrent to unreasonable activity, an area explored by Mr. Gordon Turriff in an article "Towards a New World of Costs" published in Volume 51 of The Advocate at page 717. Mr. Turriff referred to Houweling Nurseries Ltd. v. Fisons Western Corporation (1988) 37 B.C.L.R. (2d) 2, a decision of the B.C. Court of Appeal written by Madame Justice McLachlin, as she then was:
| Costs in our system of litigation serve the purpose, not only of indemnifying the successful litigant to a greater or lessor degree, but of deterring frivolous actions or defences. Parties, in calculating the risks of proceeding with a particular action or defence, should be able to forecast with some degree of precision what penalty they face should they be unsuccessful (page 25). |
Mr. Turriff went on to point out that this passage was bracketed with reminders that costs should be kept within relatively modest limits so as not to deter parties from making good claims and mounting good defences, but that it was still a message from the B.C. Court of Appeal that costs might be a general deterrent to frivolous proceedings. This same principle applies to interlocutory steps.
[11] In considering the appropriate award of costs to make I have kept in mind that costs normally follow the event but, to extent that success is divided, that rule might be modified. However, I should also look upon costs as a deterrent where there has been an abuse or frivolous behaviour. To attempt to hold up a Court ordered and approved sale, with no reasonable grounds, is at least frivolous behaviour (and perhaps an abuse) that ought to sound in costs. Here I would also note that Mr. Crawford had previously opposed four motions to gain access for surveyors, purchasers and persons to look after the ships: the opposition to those motions was singularly unsuccessful for the most part. That part of the time spent in hearing the motion dealt with an application by the D.N.D. to become an intervenor and the adjournment of that short leave motion to allow Mr. Crawford"s counsel to obtain instructions, is not a factor in awarding costs, for it was the initial improper action of Mr. Crawford, in barring the D.N.D. from removing sensitive equipment, when Mr. Crawford no longer had an in rem interest in the ships, which brought the motion about. Mr. Crawford is the author of his own misfortune. All of the circumstances considered the Plaintiffs claim a modest sum for costs. Thus an award of costs which follows that requested by the Plaintiffs.
ORDER:
[12] The Plaintiffs shall have costs in the amount of $1,200, payable with 21 days.
(Sgd.) "John A. Hargrave"
Prothonotary
December 14, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-778-99
STYLE OF CAUSE: UNITED PARTS OF FLORIDA INC., ET AL
v.
RICHARD M. CRAWFORD ET AL
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR ORDER AND ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: DECEMBER 14, 1999
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
SOLICITORS OF RECORD:
CAMPNEY & MURPHY
| VANCOUVER, BC FOR THE PLAINTIFFS |
GIASCHI & MAROLIS
| VANCOUVER, BC. FOR THE DEFENDANTS |