Zündel v. Citron
T-1411-98
Smith A.O.
11/8/99
7 pp.
Request by Human Rights Commission for assessment of costs flowing from Court order dismissing applicant's interlocutory motion with costs-Applicant arguing as award of costs on motion did not provide for costs "in any event of cause" and applicant eventually successful on main matter (judicial review), costs should now revert to applicant-Applicant also argued assessment should not go ahead in view of appeals remaining outstanding-Applicant's objection allowed-General practice not to await outcome of appeal before costs dealt with in Trial Division proceedings-However, at least in normal circumstances and subject to Court's discretion that costs be made payable forthwith, parties should avoid multiplicity of assessments by awaiting final resolution of litigation: Banke Electronics Ltd. v. Olvan Tool & Die Inc. (1981), 32 O.R. (2d) 630 (H.C.); Nature's Path Foods Inc. v. Country Fresh Enterprises Inc., [1999] F.C.J. No. 827 (T.D.) (QL)-This paves smoother road toward final conclusion, and also avoids bridling parties, and Court, with additional costs from assessments which may become varied, or even reversed, by later rulings of Court affecting costs between parties-Order herein did not direct costs payable forthwith-Mere existence of appeal not itself boding necessarily ominous fate for either decision challeged or proceedings as whole in Court below-Here, Court below saw fit to award costs of applicant's failed motion to Commission and, contrary to argument costs should now revert to applicant, assessment cannot change award: IBM Canada v. Xerox of Canada, [1977] 1 F.C. 181 (T.D.)-In circumstances of case, assessment should not proceed in view of practicality of awaiting assessment upon final resolution of outstanding appeals.