Date: 20021223
Docket: T-992-92
Neutral citation: 2002 FCT 1325
BETWEEN:
ALMECON INDUSTRIES LIMITED
Plaintiff
- and -
ANCHORTEK LTD., EXPLOSIVES LIMITED,
ACE EXPLOSIVES ETI LTD. AND
WESTERN EXPLOSIVES LTD.
Defendants
Assessment Officer
[1] Subsequent to judgment herein, the Court issued a Supplementary Judgment - Costs awarding costs of the action to the Plaintiff, including the counterclaim, and outlining directions for the assessment of costs. The Plaintiff presented its bill of costs for $285,633.42 and requested a date for assessment. The Defendants objected on the basis that an assessment of costs would be premature given pending appeals of both decisions. I directed that the parties address this preliminary objection by way of written submissions.
The Plaintiff's Position
[2] The Plaintiff argued that, given that the Defendants had made a similar objection to the trial judge by requesting that any decision concerning costs be delayed until disposition of the appeal on the infringement and validity issues and given that the Court refused to delay issuance of directions for costs and the assessment of said costs, a ruling from the Court on this preliminary objection is already in place. The Court directed that "an assessment of the plaintiff's costs shall take place" and therefore the assessment officer has no discretion to delay.
[3] The Plaintiff asserted that cases such as Schmeiser v. Monsanto (2002) 19 C.P.R. (4th) 524 (F.C.T.D.) affirmed 2002 FCA 449 and Mennes v. Canada (Correctional Services) [1999] F.C.J. 664 (A.O.) hold that pending appeals are not sufficient authority to delay dispositions of costs. The Plaintiff argued that Casden v. Cooper Enterprises Ltd. [1991] 3 F.C. 281 (T.O.) is distinguishable because the Federal Court Rules, 1998, no longer contain the provision in former Rule 1214 that "Parts I, II and III are applicable to such an appeal as though the appeal were a continuation of that proceeding". As well, Casden, supra, is distinguishable in that it addressed interlocutory and post-judgment applications and not an assessment of costs flowing from a final judgment. The Plaintiff argued that granting the Defendants' request here for delay of the assessment would effectively operate as a stay of execution of judgment contrary to the obiter comment in Casden, supra, at 291 that such a result is "a remedy or effect normally beyond the jurisdiction of any Taxing Officer".
The Defendants' Position
[4] The Defendants argued that, given the trial judge was silent as to the timing of the assessment of costs and did not issue directions on that point, the timing of the assessment of costs has been left within the discretion of the assessment officer. The Defendants noted that the latest information from the Registry is that the appeal could be heard shortly and therefore, consistent with Casden, supra, the most expeditious and least expensive approach would be to await the decision of the appellate court to ensure the assessment officer has the final conclusions on the substantive issues between the parties. This would also preclude an unnecessary assessment of costs should the Defendants be successful on the appeals. The Defendants argued that this phrase in the Supplementary Judgment - Costs, "All of the foregoing being subject to any determination in accordance with Rule 420 regarding any written offer to settle that has not at this time been made known to the Court", supports the conclusion that an assessment of costs would be premature given that the relevance of settlement offers could only be gauged following a reference to determine damages or profits.
Assessment
[5] The issue in Casden, supra, revolved about the meaning to be given to the term "interlocutory". In addressing that, I necessarily examined the procedural implications of both interlocutory and final judgments. However, it is important to note that Casden, supra, involved three interlocutory applications made to give effect to the terms of a judgment by which each side was to bear its own costs. It did not cast final judgments of the Trial Division, which have awarded costs, as interlocutory decisions subject to delays in the assessments of said costs because final dispositions of the substantive issues between litigants in the Federal Court of Appeal are pending. It did not suggest that final judgments awarding costs are subject to the "forthwith" limitations for interlocutory decisions discussed in Nature's Path Foods Inc. v. Country Fresh Enterprises Inc. et al., Docket T-2647-97 on May 21, 1999 (A.O.). Current Rule 340 is more restrictive than former rule 1214. The Plaintiff, if it chooses, has the right to proceed with the assessment of costs, further to judgment in the Trial Division, notwithstanding a pending appeal.
[6] A Certificate will issue to the effect that the Defendants' objection to assessment of the Plaintiff's bill of costs in the Trial Division, made on the basis that assessment would be premature due to pending appeals, is dismissed.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
December 23, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-992-92
STYLE OF CAUSE: Almecon Industries Limited v. Anchortek Ltd. et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS BY: CHARLES E. STINSON
DATED: December 23, 2002
SOLICITORS OF RECORD:
Dimock Stratton Clarizio LLP for Plaintiff
Toronto, ON
Smart & Biggar for Defendants
Ottawa, ON