Date: 20010621
Docket: T-2028-95
Neutral Citation: 2001 FCT 689
BETWEEN:
WHIRLPOOL CORPORATION and
INGLIS LIMITED
Plaintiffs
- and -
CAMCO INC. and
GENERAL ELECTRIC COMPANY
Defendants
AND BETWEEN:
T-2113-96
WHIRLPOOL CORPORATION and
INGLIS LIMITED
Plaintiffs
- and -
MAYTAG CORPORATION,
MAYTAG LIMITED and
MAYTAG QUEBEC INC.
Defendants
(Delivered from the Bench at Toronto, Ontario
on Wednesday, June 20, 2001)
[1] These motions for directions brought in each of these two files were heard together. I directed that counsel first address the question of timing because, in my view, there was a serious issue raised with respect to the timeliness of the motions.
[2] In the first action in which the Camco Company is the defendant, trial was held for 5 days in April of 1997 and Justice Cullen gave judgment in August of that year finding generally in favour of the plaintiffs and awarded costs to them. The second action in which the defendants are Maytag Companies, was set for trial only a month or so after the judgment in the first action and as a result of that judgment a motion was made before me for a consent judgment and I signed such a judgment in that month. That judgment also awarded costs to the plaintiffs and it specifically reserved to the defendants the right to appeal the judgment on the merits, that is to say with respect to the findings of validity and infringement.
[3] Both judgments were in fact appealed to the Federal Court of Appeal and I understand that the costs award was in issue on the appeal of the first judgment but not apparently on the appeal of the second judgment, although it is not clear to me what would have happened if the appeal from the second judgment had been successful, that is to say whether the costs award which I had made on a consent basis would or would not have survived that appeal.
[4] The appeals were dismissed by the Court of Appeal in the very early part of 1999. Both defendants sought and obtained leave to appeal to the Supreme Court of Canada which in December of 2000 dismissed the appeals with costs. A motion for reconsideration was dismissed by the Supreme Court in February of this year and the present motions, which are now before me, were served and filed very shortly after.
[5] In my view, the motions are out of time. It is my opinion that when Rule 403 requires that a motion of this sort be made within 30 days of judgment, it is referring, in the case of the Trial Division, to the judgment of the Trial Division.
[6] The plaintiffs rely in part on what, with respect, I think, was an obiter dictum in the Court of Appeal, in the case of Engine and Leasing Co v. Atlantic Towing Ltd. (1994), 164 N.R. 394 (F.C.A.) for the proposition that if costs are in issue on appeal, the time for bringing a Rule 403 motion for the costs in the Trial Division only runs from the time of the judgment of the Court of Appeal. I do not think that the plaintiffs' construction of what was said in that case, in fact, is the proper construction of the meaning to put on the words of Mr. Justice Décary. But whether or not that was so, it was clearly an obiter dictum and in my view, in the circumstances of that case was entirely appropriate. This case is very different. In Engine and Leasing, the question of costs had not been dealt with at the hearing and had in fact been specifically reserved to be dealt with at a later time. Nothing of the sort happened here. Incidently, a very similar situation obtained in the well known decision Stein v. "Kathy K." (The) [1976] 2 F.C. 69 (T.D.) where once again a motion of this sort was brought a long time after the initial Trial Division judgment because the question of costs had not been spoken to and had been left aside by both counsel and the Court.
[7] The plaintiffs also invoke Rule 3 in aid of the interpretation they would seek to put on Rule 403 and they say that it is wasteful and time consuming to require that a motion under Rule 403 must be brought within 30 days of the final judgment where that final judgment of the Trial Division has been appealed. They say that the proper reading of Rule 403, in the light of Rule 3, is to read that the judgment there referred to is the final judgment in appeal.
[8] It is true that with the aid of hindsight there will always be some cases in which one can say after the fact that it would have been wasteful to bring a motion for additional costs or for a special order as to costs immediately after the Trial Division judgment. But that fact was surely not unknown to the drafters of the Rules[1] and it is equally true that there will be cases in which there will be a clear saving of both time and money by requiring that the Rule 403 motion be brought as the rule requires, within 30 days of the Trial Division judgment. Indeed this is such a case. If these motions had been brought before the trial judge within 30 days of the pronouncement of the two judgments in question, then it is more than likely that the question of costs could have been joined to the question of the merits of the appeals and could have been dealt with by the Court of Appeal at the same time and on the same record. As it is, if the order I make today is subject to appeal and if I were going to hear this motion on its merits, the order I would make, if I made an order awarding further costs, would require very substantial printing costs and very substantial court time in order to dispose of the appeal.
[9] I would add that the rule in this Court is that a judgment is not suspended or held in abeyance by the filing of an appeal and the very existence of that rule argues strongly against the interpretation which the plaintiffs would seek to put on the word "judgment" in Rule 403.
[10] Even if what I referred to as an obiter dictum in the Engine and Leasing case was an accurate statement of the law and should be read as the plaintiffs would urge, it would still be the case that this motion would be out of time since, at best, it could only refer to the final judgment of the Federal Court of Appeal, and not to the judgment of the Supreme Court of Canada.
[11] In the alternative, the plaintiffs have asked for an extension of time so as to permit them nunc pro tunc to file these motions. They say that the defendants suffer no prejudice or would suffer no prejudice if I were to make an order to that effect. I am not sure that that is the case. In fact, it occurs to me that there may be a number of factors which may be prejudicial to the defendants, not the least of which is, of course the fact that there has been a greatly increased scale of costs since the time the judgments were rendered in August and September 1997. There is also the undoubted fact that the motions would not have been heard as they are being heard by a judge who had no personal familiarity with the circumstances of the trial. If the motions had been made timely, Justice Cullen who presided the trial, would have been in a much better position for both parties to make a fair adjudication on the various requests that the plaintiffs have made.
[12] But quite apart from that, prejudice is not the only factor which needs to be considered when deciding whether or not to extend time. There are others which should be considered. There is indeed no exhaustive list of the various factors which a judge may take into account when deciding whether or not to exercise his/her discretion in favour of an extension of time. But amongst those which are frequently mentioned, are the strength or weakness of the case in respect of which it is sought to extend time, the length of the time which has elapsed since the time fixed has expired, and the reasons, whatever they are, for the delay as well as whether or not the person seeking the extension has had and manifested since time started to toll a clear intention to act.
[13] Weighing those factors as best I can, I do not think that this is an appropriate case for the exercise of discretion and I must say that, in my view, the weightiest of those considerations is the great length of time, over 40 months since the initial judgments were pronounced, that has been allowed to elapse. In the result therefore, I shall dismiss both motions with costs. I, as presently advised, do not think that this is a case for making a special order as to costs.
Judge
Ottawa, Ontario
June 21, 2001
[1] I pointed out to counsel during argument that the harmony between the time fixed by Rule 403 and that set for filing a Notice of Appeal under s. 27 of the Federal Court Act was not coincidental.