T-323-97
Between:
HAVANA HOUSE CIGAR & TOBACCO
MERCHANTS LTD. and EMPRESSA CUBANA
DEL TABACO trading as CUBATABACO
and HABANOS S.A.,
Plaintiff
(Defendants by Counterclaim)
- and -
MARINO NAEINI carrying on business as
PACIFIC TOBACCO & CIGARS and
OREX COMMUNICATIONS LTD.,
carrying on business as
PACIFIC TOBACCO & CIGARS,
Defendants
(Plaintiffs by Counterclaim).
REASONS FOR ORDER
ROTHSTEIN, J.
The Defendants' appeal the decision of the Associate Senior Prothonotary ordering solicitor-client costs in favour of the Plaintiff on a motion regarding the striking of certain of the Defendants' pleadings. The motion was dismissed and, while it is not clear from the material before me, Plaintiff's counsel suggests that the dismissal was not based on the merits of any arguments relating to the pleadings but on the fact that certain amendments were filed by the Defendants, and that the Associate Senior Prothonotary, in consultation with counsel, thought it best to dismiss the Plaintiff's original motion to strike and allow for a new motion to be made with reference to the Defendants' amended pleadings. Indeed, that seems to be what was done. In view of the discretionary nature of that decision, the decision of the Associate Senior Prothonotary to award costs to the Plaintiff in the circumstances is one that would not justify interference on appeal.
The award of costs was for $1400 on a solicitor-client basis. According to Plaintiff's counsel, the Associate Senior Prothonotary did not obtain information from him as to the solicitor-client costs incurred and it is not clear from where the sum of $1400 was derived. In addition, I am not satisfied that there has been misconduct or other circumstances that would suggest that an award of solicitor-client costs was merited. Counsel for the Plaintiff says that the question of solicitor-client costs originated with counsel for the Defendants in the proceedings, who was asking for solicitor-client costs in favour of the Defendants. Be that as it may, there still must be some evidence that would justify the extraordinary award of solicitor-client costs. In Amway Corporation v. Her Majesty the Queen, [1986] 2 C.T.C. 341, Mahoney J.A. states, with regard to an award of solicitor-client costs:
| Costs as between solicitor and client are exceptional and generally to be awarded only on the ground of misconduct connected with the litigation. Misconduct supporting the award is not, in our opinion, apparent on the face of the record. The appellant had a right to bring the motions at the stage of proceedings it did and it had a serious argument. While an appellate court is reluctant to interfere with what is essentially an exercise of judicial discretion, it will necessarily do so when that exercise of discretion is not supported by reasons or apparent on the record. |
I am not satisfied from the record before me that the order of solicitor-client costs was warranted; nor are there reasons to explain the award. In the circumstances, I would allow the appeal only to the extent that the costs to be awarded to the Plaintiffs should be on a party-party basis in accordance with the Court Tariff.
(Sgd.) "Marshall E. Rothstein"
Judge
Vancouver, B.C.
June 11, 1997
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: HAVANA HOUSE CIGAR & TOBACCO MERCHANTS LTD. and EMPRESSA CUBANA DEL TABACO trading as CUBATABACO and HABANOS S.A. |
- and -
| MARINO NAEINI carrying on business as PACIFIC TOBACCO & CIGARS and OREX COMMUNICATIONS LTD., carrying on business as PACIFIC TOBACCO & CIGARS |
COURT NO.: T-323-97
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 9, 1997
REASONS FOR ORDER OF Rothstein, J. dated
June 11, 1997
APPEARANCES:
Mr. Kenneth McKay for Plaintiff
Mr. Brian Kingwell for Defendant
SOLICITORS OF RECORD:
Sim, Hughes, Ashton & McKay for Plaintiff
Mr. Brian Kingwell for Defendant