PRACTICE |
Costs |
Trade Arbed Inc. v. Toles Ltd.
T-636-99
Blais J.
7/11/00
10 pp.
Motion for order to set aside Prothonotary's order of July 12, 2000--In October 1999, Prothonotary rendered order setting aside arrest of ship's cargo on grounds plaintiff had failed to establish sufficient connection between cargo and cause of action, and based on Federal Court Rules, 1998, r. 221.1(a), (b), (f)--Prothonotary's order granted with costs, even though no specific representations on matter of costs at hearing--On July 12, 2000, Prothonotary rendered decision granting motion to strike out statement of claim (no opposition by plaintiff) but rejecting part of motion for direction as to award of costs in October 1999 decision on ground lacked jurisdiction under r. 403 or, if conclusion wrong, by reason of res judicata--Finally, regarding results, Prothonotary referred to Nordholm I/S v. Canada (1996), 107 F.T.R. 317 (F.C.T.D.) to effect even if had heard counsel's arguments, would not have reached different conclusion in October 1999 decision--Decision regarding costs set aside--Prothonotary erred in law, justifying Court's intervention--Under r. 403(2), motion may be brought whether or not judgment included order concerning costs--Not necessary to consider whether decision judgment or order as rule itself including both words--As question of costs not discussed at hearing, mention in decision motion granted with costs cannot lead Court to believe matter res judicata pursuant to r. 403(2)--As to "alternate reasons", Nordholm I/S should be distinguished--In October 1999 decision, Prothonotary did not specify what kind of costs awarded--Both parties therefore entitled to bring motion pursuant to r. 403 relating to costs--As Prothonotary concluded action disclosed no reasonable cause of action, immaterial or redundant, or otherwise abuse of process, case justifying application of r. 400(6)(c) and costs awarded on solicitor-and-client basis--Federal Court Rules, 1998, SOR/98-106, rr. 221.1(a),(b),(f), 403(2), 400(6)(c).