Date: 19990910
Docket: A-345-98
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
McDONALD J.A.
BETWEEN:
HERBERT SINGER, RHODA SINGER,
ENTERPRISE CAR AND TRUCK RENTALS LTD.,
ENTERPRISE CAR AND TRUCK RENTALS (SCARBOROUGH) LTD.,
HORIZON CAR AND TRUCK RENTALS (CANADA) LTD.,
720074 ONTARIO LIMITED, DISCOUNT CAR & TRUCK RENTALS LTD.,
DISCOUNT CAR & TRUCK RENTALS (NORTH YORK) INC.,
2313-7292 QUEBEC INC., 2631-6935 QUEBEC INC.,
819854 ONTARIO LIMITED, 401127 B.C. LTD.
Appellants
- and -
ENTERPRISE RENT-A-CAR COMPANY and
ENTERPRISE RENT-A-CAR LIMITED
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered orally from the Bench at Toronto, Ontario on
Friday, September 10, 1999)
McDONALD J.A.
[1] This is an appeal of a portion of a costs award rendered by Mr. Justice McKeown of the Federal Court - Trial Division. Mr. Justice McKeown granted costs to the respondents in their interlocutory injunction application. The appellants are appealing that decision.
[2] In his reasons for judgment, Mr. Justice McKeown stated that "In light of Toronto Dominion Bank (1992) 40 C.P.R. 3d P. 68 decision the plaintiff is granted costs in the interlocutory injunction application." The Toronto Dominion Bank decision stands for the proposition that a cost award in an interlocutory injunction motion should normally be costs in the cause.
[3] Mr. Justice McKeown"s judgment was rendered after a change in the Federal Court Rules . The new Rule 401(1) states:
| The Court may award costs of a motion in an amount fixed by the Court. |
[4] The new Federal Court Rules apply in this case because no specific award as to costs of the interlocutory motions had been made until the decision of Mr. Justice McKeown. The new Rule 501(1) states that:
| Subject to subsection (2), these Rules apply to all proceedings, including further steps taken in proceedings that were commenced before the coming into force of these Rules. |
[5] The new Rules took effect on April 25, 1998. Mr. Justice McKeown heard this case on May 4, 1998.
[6] The new Rule 401(1) gives discretion to the Trial Judge in determining the appropriate award for costs on a motion. This new Rule displaces the rule in Toronto Dominion Bank, as Mr. Justice Rothstein explained in AIC Ltd. v. Infinity Investment Counsel Ltd., (1998) 148 F.T.R. 240. A judge now has the discretion to award the costs of a motion to either party, regardless of the outcome of the main matter.
[7] Despite the Trial Judge"s reliance on Toronto Dominion Bank , this Court is satisfied that he did not err in exercising his discretion to award costs to the respondents for their interlocutory motion. There were adequate reasons in this case to award costs to the respondents. The rationale behind the decision in Thurston Hayes Ltd. v. Horn Abbot Ltd. (1985), 76 C.P.R. (3d) 124, upon which Toronto Dominion Bank was based, was that a defendant should not be awarded costs upon winning a motion for an interlocutory injunction because the losing party may still have been justified in complaining of the defendants" activities. In this case, both parties" interlocutory motions were refused on consent with costs reserved to the discretion of the Trial Judge. The respondent was successful at trial. Even if Thurston Hayes is no longer a binding precedent, using the rationale expressed in it may be appropriate in circumstances where a costs award for an interlocutory injunction is reserved and is given after the completion of the main action.
[8] The appeal will be dismissed with costs.
"F.J. McDonald"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-345-98
| STYLE OF CAUSE: HERBERT SINGER, RHODA SINGER, ENTERPRISE CAR AND TRUCK RENTALS LTD., ENTERPRISE CAR AND TRUCK RENTALS (SCARBOROUGH) LTD., HORIZON CAR AND TRUCK RENTALS (CANADA) LTD., 720074 ONTARIO LIMITED, DISCOUNT CAR & TRUCK RENTALS LTD., DISCOUNT CAR & TRUCK RENTALS (NORTH YORK) INC., 2313-7292 QUEBEC INC., 2631-6935 QUEBEC INC., 819854 ONTARIO LIMITED, 401127 B.C. LTD. |
- and -
| ENTERPRISE RENT-A-CAR COMPANY and |
ENTERPRISE RENT-A-CAR LIMITED
DATE OF HEARING: FRIDAY, SEPTEMBER 10, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: McDONALD J.A. |
Delivered at Toronto, Ontario
on Friday, September 10, 1999
APPEARANCES: Mr. Arthur Renaud
| For the Appellants |
Mr. Michael E. Charles
For the Respondents
| SOLICITORS OF RECORD: Sim, Hughes, Ashton & McKay |
Barristers & Solicitors
6 th Flr., 330 University Ave.,
Toronto, Ontario
M5G 1R7
| For the Appellant |
Solicitors of Record cont"d....
Bereksin & Parr
Barristers & Solicitors
Box 401, 40 King St. W.,
Toronto, Ontario
M5H 3Y2
For the Respondents
FEDERAL COURT OF APPEAL
Date: 19990910
Docket: A-345-98
BETWEEN:
HERBERT SINGER, RHODA SINGER,
| ENTERPRISE CAR AND TRUCK RENTALS LTD., ENTERPRISE CAR AND TRUCK RENTALS (SCARBOROUGH) LTD., HORIZON CAR AND TRUCK RENTALS (CANADA) LTD., 720074 ONTARIO LIMITED, DISCOUNT CAR & TRUCK RENTALS LTD., DISCOUNT CAR & TRUCK RENTALS (NORTH YORK) INC.,2313-7292 QUEBEC INC., 2631-6935 QUEBEC INC., 819854 ONTARIO LIMITED, 401127 B.C. LTD. |
Appellants
- and -
ENTERPRISE RENT-A-CAR COMPANY and
ENTERPRISE RENT-A-CAR LIMITED
Respondents
REASONS FOR JUDGMENT
OF THE COURT