Date: 20010730
Docket: T-956-97
Neutral Citation: 2001 FCT 841
ACTION IN REM AGAINST THE CARGO OF EXPLOSIVES OF ABOUT 500 METRIC TONS "PRILLED TNT" AND 500 METRIC TONS "FLAKED TNT" UN0209 1.1D., PRESENTLY ON BOARD THE VESSEL "AN XIN JIANG", ITS OWNERS AND ALL OTHER PERSONS INTERESTED THEREIN AND AGAINST THE VESSEL "AN XIN JIANG", ITS CARGO AND ITS OWNERS AND ALL OTHER PERSONS INTERESTED THEREIN AND IN PERSONAM AGAINST BESTON CHEMICAL CORPORATION, INC., CHINA NORTH CHEMICAL INDUSTRIES CORPORATION, CHINA XINSHIDAI COMPANY, CHINA OCEAN SHIPPING (GROUP) CO. (COSCO) AND GUANGZHOU OCEAN SHIPPING COMPANY (COSCO GUANGZHOU)
Between:
PARAMOUNT ENTERPRISES INTERNATIONAL, INC.,
Plaintiff
AND
THE CARGO OF EXPLOSIVES OF ABOUT 500 METRIC TONS "PRILLED TNT" AND 500 METRIC TONS "FLAKED TNT" UN0209 1.1D., PRESENTLY ON BOARD THE VESSEL "AN XIN JIANG", ITS OWNERS AND ALL OTHER PERSONS INTERESTED THEREIN,
THE VESSEL "AN XIN JIANG", ITS CARGO AND ITS OWNERS AND ALL OTHER PERSONS INTERESTED THEREIN,
BESTON CHEMICAL CORPORATION, INC.,
CHINA NORTH CHEMICAL INDUSTRIES CORPORATION,
CHINA XINSHIDAI COMPANY,
CHINA OCEAN SHIPPING (GROUP) CO. (COSCO),
GUANGZHOU OCEAN SHIPPING COMPANY (COSCO GUANGZHOU),
Defendants
ASSESSMENT OF COSTS - REASONS
MICHELLE LAMY, ASSESSMENT OFFICER
[1] Pursuant to a motion to strike out by the defendants China Ocean Shipping (Group) Co. and Guangzhou Ocean Shipping Company (hereinafter referred to as "Cosco"), Mr. Richard Morneau, Prothonotary, ordered on September 30, 1997 that the action in rem by Paramount in relation to the vessel and the cargo did not disclose any reasonable cause of action. On December 17, 1997, Madam Justice Tremblay-Lamer allowed in part the appeal filed by the plaintiff.
[2] On December 15, 2000, the Court of Appeal allowed the appeals of the defendants Cosco (A-929-97) and Beston Chemical Corporation Inc. (A-924-97) and restored the order of Prothonotary Richard Morneau of September 30, 1997 while awarding the defendants/appellants their costs both at trial and on appeal.
[3] The assessment of the costs of the defendants Cosco was held on June 8, 2001 in the presence of Mr. Guy Vaillancourt as well as Ms. Marilyn Thibault, representing the defendant Beston Chemical Corporation, and Mr. Jean-Marie Fontaine for the plaintiff. The costs incurred by Cosco, both at trial and on appeal, amount to $20,080.73, or $15,400. in fees and $4,680.73 for miscellaneous disbursements. It should be noted that this assessment was held at the same time as that of Beston Chemical Corporation.
[4] Mr. Vaillancourt argued that the maximum units provided in column III of Tariff B should have been awarded to him, relying on the factors listed in subsection 400(3) of the Federal Court Rules, 1998, including the result of the proceeding, the importance and complexity of the issues, the amount of work and the public interest. He also cited the decision of Madam Justice Tremblay-Lamer in Sanmammas Compania Maritima S.A. v. "Netuno" (The) (1995), 102 F.T.R. 181 (T.D.), which stipulates that "under the new rule the general philosophy is that party and party costs should bear a reasonable relationship to the actual costs of the litigation." According to Mr. Vaillancourt, the actual costs incurred in the Court of Appeal are in the order of $43,000.
[5] In the course of submissions on this point, Mr. Fontaine referred us to the decision of Assessment Officer Charles Stinson in Carpenter Fishing Corp. v. Canada (1999), F.C.J. No. 393, para. 15, which specifies that each service in Tariff B is assessed separately and according to its particular circumstances. Since Mr. Fontaine was applying this decision more particularly to the services requested at trial, we concluded that he was acknowledging that the maximum of units requested for the services rendered in the Court of Appeal was justified. In reply, Mr. Vaillancourt submitted that the substantive issue both at trial and on appeal was the same.
[6] In view of these submissions and the fact that no service is disputed, the fees requested by Cosco are allowed as is in the amount of $14,000 (140 units x $100/unit), with the exception of those claimed under the following items, which are assessed as follows:
- Mr. Vaillancourt withdrew his request under item 24 because of the decision rendered by Mr. Justice Denault in Sim v. Buttino Investments Inc. (1997), F.C.J. No. 1607;
- the claim made under item 27 for the preparation of a summary of submissions and a book of authorities in anticipation of the hearing of Cosco's motion before Prothonotary Richard Morneau is denied since the defendants are already compensated under item 5 for the preparation of that motion, the preparation of which included "materials and responses thereto";
- the services rendered in the preparation of the submissions and a book of authorities in response to Paramount's appeal, heard by Madam Justice Tremblay-Lamer, are assessed under item 5 (7 units) and not 27, for the same reasons;
- 3 units are allowed under item 27 for various services rendered during the preparation of the appeal book, which represents the maximum provided under column III.
[7] In regard to the court fees paid under Tariff A ($907) and the disbursements incurred in the amount of $3,773.73, they are awarded as such, as they are not contested by Mr. Lauzon.
[8] Cosco's costs are therefore assessed in the amount of $18,680.73, and a certificate shall issue for that amount. As to the interest requested on the costs, I refer the parties to the decision of Taxing Officer Charles Stinson in Byers Transport Limited v. Kosanovich, [1996] 3 F.C. p. F-23 (A-333-94), which states that:
Taxing Officers do not, despite appearances to the contrary, award costs. That authority is reserved to the Court or legislation. The Taxing Officer, via taxation, translates said award to a dollar figure. Assignment and/or calculation of interest is not part of that process. Put another way, interest is a function of the Court's decision as embodied in the Judgment. It is not a function of the Taxing Officer's Certificate. The entitlement to the interest calculation may become an issue in the enforcement stage of litigation. If a dispute arose, jurisdiction would lie with the Court and not with the Taxing Officer.
[Emphasis in original]
MICHELLE LAMY
ASSESSMENT OFFICER
MONTRÉAL, QUEBEC
July 30, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010730
Docket: T-956-97
Between:
PARAMOUNT ENTERPRISES INTERNATIONAL, INC.,
Plaintiff
AND
THE CARGO OF EXPLOSIVES OF ABOUT 500 METRIC TONS "PRILLED TNT" AND 500 METRIC TONS "FLAKED TNT" UN0209 1.1D., PRESENTLY ON BOARD THE VESSEL "AN XIN JIANG", ITS OWNERS AND ALL OTHER PERSONS INTERESTED THEREIN,
THE VESSEL "AN XIN JIANG", ITS CARGO AND ITS OWNERS AND ALL OTHER PERSONS INTERESTED THEREIN
BESTON CHEMICAL CORPORATION, INC.,
CHINA NORTH CHEMICAL INDUSTRIES CORPORATION,
CHINA XINSHIDAI COMPANY,
CHINA OCEAN SHIPPING (GROUP) CO. (COSCO),
GUANGZHOU OCEAN SHIPPING COMPANY (COSCO GUANGZHOU),
Defendants
ASSESSMENT OF COSTS - REASONS
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-956-97
STYLE:
PARAMOUNT ENTERPRISES INTERNATIONAL, INC.,
Plaintiff
AND
THE CARGO OF EXPLOSIVES OF ABOUT 500 METRIC TONS "PRILLED TNT" AND 500 METRIC TONS "FLAKED TNT" UN0209 1.1D., PRESENTLY ON BOARD THE VESSEL "AN XIN JIANG", ITS OWNERS AND ALL OTHER PERSONS INTERESTED THEREIN,
THE VESSEL "AN XIN JIANG", ITS CARGO AND ITS OWNERS AND ALL OTHER PERSONS INTERESTED THEREIN
BESTON CHEMICAL CORPORATION, INC.,
CHINA NORTH CHEMICAL INDUSTRIES CORPORATION,
CHINA XINSHIDAI COMPANY,
CHINA OCEAN SHIPPING (GROUP) CO. (COSCO),
GUANGZHOU OCEAN SHIPPING COMPANY (COSCO GUANGZHOU),
Defendants
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: June 8, 2001
ASSESSMENT OF COSTS - REASONS OF MICHELLE LAMY, ASSESSMENT OFFICER
DATED: July 30, 2001
APPEARANCES:
Jean-Marie Fontaine FOR THE PLAINTIFF
Guy Vaillancourt FOR THE DEFENDANTS CHINA OCEAN SHIPPING (GROUP) CO. (COSCO) ET GUANGZHOU OCEAN SHIPPING COMPANY (COSCO GUANGZHOU)
Marilyn Thibault FOR THE DEFENDANT BESTON CHEMICAL CORPORATION
SOLICITORS OF RECORD:
Sproule Pollack
Montréal, Quebec FOR THE PLAINTIFF
Étude légale Guy Vaillancourt
Québec, Quebec FOR THE DEFENDANTS CHINA OCEAN SHIPPING (GROUP) CO. (COSCO) ET GUANGZHOU OCEAN SHIPPING COMPANY (COSCO GUANGZHOU)
Langlois Gaudreau
Québec, Quebec FOR THE DEFENDANT BESTON CHEMICAL CORPORATION
De Man Pilotte FOR THE CARGO 500 TONS "PRILLED TNT"