Date: 20040728
Docket: A-28-02
Citation: 2004 FCA 272
BETWEEN:
THE OWNERS AND ALL OTHERS
INTERESTED IN THE SHIP "KATSURAGI",
THE SHIP "KATSURAGI",
HAPAG-LLOYD CONTAINER LIN, GmbH
and TAMA LAKE SHIP HOLDING SA
Appellants/Defendants
- and -
INCREMONA-SALERNO MARMI AFFINI SICILIANI
(I.S.M.A.S.) s.n.c. and
DANZAS (CANADA) LIMITED
Respondents/Plaintiffs
Assessment Officer
[1] In Federal Court file T-2330-00, an action claiming damages and other relief against the Appellants/Defendants (hereafter the "Katsuragi Appellants") and a number of other defendants associated with the ship "Castor" (who also successfully appealed in Federal Court of Appeal file A-30-02) arising out of the shipment of a consignment of polished granite from Italy to Canada, the parties agreed among themselves to seek a declaration as to whether the Marine Liability Act, s. 46 (1) applied on the facts therein. On December 4, 2001, the Federal Court ordered that said subsection did apply, gave certain directions to the Defendants and awarded costs against them in any event of the cause. On December 2, 2002, the Federal Court of Appeal allowed this appeal, set aside the December 4, 2001 order below, declared that s. 46(1) did not apply and awarded costs here and below to the "Katsuragi Appellants". I issued a timetable for written disposition of the bill of costs of the "Katsuragi Appellants".
[2] The Respondents conceded the disbursements claimed at $1,106.44 and asserted that the 3 units claimed for item 26 (assessment of costs) should be reduced to the minimum 2 units leaving $2,010.25 (inclusive of GST) as conceded for counsel fees. The Respondents led reply evidence consisting of a letter dated December 19, 2003:
Katsuragi - Granite Slabs... HLCUMIL 99 1202103... As per our telephone conversation earlier today, we confirm that our respective clients have agreed to settle the above matter on the basis that your clients pay our clients the sum of CAD 22,516.28, subject to each party bearing its own costs in relation to all proceedings thus far. Please confirm by signing this fax and returning it to us.
The exhibited letter bears an endorsement of agreement. The Respondents argued that said evidence establishes that costs of all proceedings relating to the subject dispute were waived by said settlement in Germany given no other proceedings to which it could refer. The "Katsuragi Appellants" would violate said settlement agreement if they attempt to enforce an order for costs in this jurisdiction and would in turn prompt the Respondents to move the Federal Court to enforce the settlement agreement.
[3] The "Katsuragi Appellants" asserted that their position has been and continues to be that any settlement reached in Germany did not preclude their entitlement to costs in the Federal Court and the Federal Court of Appeal matters and therefore any settlement reached in Germany is irrelevant in this assessment of costs. The enforceability of the "Katsuragi Appellants"' order for costs should be left for another day and another forum.
Assessment
[4] The Encyclopedia of Words and Phrases Legal Maxims Canada, 47th Cumulative Supplement, March 2004, Volume 4: Q to Z, (Toronto: Thomson Carswell) indicates:
... A 'step' is in the nature of an application to the court; it is a matter in the general procedure of the action which advances the matter toward trial. It is not an application such as an application to set aside a writ of summons since that is not a 'step' in furtherance of the action... matters in the general procedure of the action which advance it from the beginning of the action to trial and are developments in the course of putting the action in such a condition that it can be dealt with by the court... the provision by a party of an affidavit of documents in response to a demand for discovery by an opposing party is a "step in the action" because it amounts to a discovery of documents. The form of such "discovery" is irrelevant to the working of the Rule. However, by the same reasoning, the delivery by one party to another of a mere demand for particulars is not a "step in the action"....
[5] The view in VMC Corporation v. Zodiac Ltée - Zodiac Ltd., [1977] 2 F.C. 183 at 185 (F.C.T.D.), was that "taking 'a step in a proceeding', as that expression is used in the Rules, involves doing, on the record of the proceeding in the Court, something required by the Rules to be done to advance the proceeding to a conclusion." I think that at least one inference from these authorities is that the continuum of litigation consists of steps, shaped by statutes, regulations or practice and distinct from one another in the sense of discrete occurrences or events.
[6] That there has been judgment in the litigation does not mean that subsequent interlocutory occurrences should be different in nature from those preceding judgment. That is, I do not think that such subsequent occurrences or events somehow become commingled so as to lose their sense of being discrete relative to one another. Although it may be that the authorities supra, addressing the concept of step, did not have in mind occurrences subsequent to judgment such as applications for directions on costs, assessments of costs and writs of execution, I think it incontrovertible that these latter occurrences, if not steps in the sense contemplated by the authorities supra, must be viewed as distinct from one another. While the Respondents' reply evidence might be seen as compelling, particularly given that documents in Federal Court file
T-2330-00 disclose that the number of the bill of lading in issue matches the number in a settlement document in Germany coincidentally expressed in Canadian currency, and notwithstanding the absence of direct rebuttal evidence from the "Katsuragi Appellants" on the irrelevance of said settlement document, I view the assessment of costs in these circumstances as a necessary step or occurrence to crystallize the dollar amount of the award of costs prior to any step to enforce said award. The latter would include disposition of issues such as the right to so proceed in this jurisdiction. There likely are circumstances in which the presence of a settlement document would preclude my jurisdiction, but I conclude here that I should proceed with the assessment of costs.
[7] However, in the circumstances, I allow only 2 units under item 26. The bill of costs of the "Katsuragi Appellants" presented at $3,234.90, is assessed and allowed at $3,116.69.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, BC
July 28, 2004
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-28-02
STYLE OF CAUSE: THE SHIP "KATSURAGI" et al.
v.
INCREMONA-SALERNO MARMI AFFINI
SICILIANI (I.S.M.A.S.) s.n.c. et al.
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: July 28, 2004
SOLICITORS OF RECORD:
Bull, Housser & Tupper For Appellants/Defendants
Vancouver, BC
Bromley Chapelski
Vancouver, BC For Respondents/Plaintiffs