T-433-83
Swing Paints Ltd. (Applicant)
v.
Minwax Company, Inc. (Respondent)
Trial Division, Muldoon J.—Toronto, February
27; Ottawa, March 2, 1984.
Practice — Affidavits — Applicant granted leave to cross-
examine respondent's deponents and to file further affidavit
evidence — Respondent seeking to cross-examine applicant's
further deponents — Counsel proceeding by agreement subject
to specific conditions — Respondent confirming agreement —
Applicant accepting confirmation of agreement while purport
ing to bind respondent to added condition cross-examinations
strictly limited to affidavit declarations — Applicant subse
quently objecting to cross-examination of one deponent on
ground contrary to agreement — Acceptance or rejection of
agreement and terms thereof should be unconditional and
unambiguous — Applicant's added condition, enfolded within
confirmation, diluting unambiguous acceptance — Proceed
ings in instant case substantive, albeit summary — Affidavits
and cross-examinations effected as evidence on principal
matter at issue — Courts requiring deponents submit to
cross-examination on matters specifically set forth in affidavit
as well as on collateral matters arising from answers —
Deponent cannot swear to matters in affidavit and then seek
protection from fair cross-examination — Court holding
respondent to undertaking further supplementary affidavits
would not be introduced — However, no breach of undertaking
if useful evidence elicited upon cross-examinations — Federal
Court Rules, C.R.C., c. 663, RR. 324, 704(8).
Trade marks — Practice — Expungement proceedings —
Affidavits — Cross-examination of deponents — Affidavits
and cross-examinations as evidence on matter at issue —
Deponent to answer questions on collateral matters arising
from answers — Affidavit referring to labels and packaging —
Questions as to distinctiveness of mark "Minwax" and design
to be answered.
The present matter arises in expungement proceedings rela
tive to the respondent's trade mark "Minwax" and design. A
statement of material facts and a reply were filed. By order of
this Court, the applicant was granted leave (1) to cross-exam
ine the deponents in support of the respondent's reply and (2)
to file additional affidavit evidence. The respondent appealed
the order and sought to cross-examine the applicant's depo-
nents. Accordingly, counsel for both parties decided to proceed
by agreement, subject to certain specific conditions. The
respondent confirmed the agreement in a letter to applicant's
counsel. The latter responded by two letters: in the first one, he
appeared to confirm the agreement, but in the second one, he
purported to bind the respondent to a condition not included in
the agreement, i.e. that the cross-examination of its deponents
be strictly limited to declarations contained in the affidavits.
All documents were executed. The respondent began cross-
examining the deponents. However, the cross-examination of
the second deponent was met by objections from applicant's
counsel on the ground that the questions posed concerned
matters which were not restricted to the four corners of the
affidavit. The respondent now moves for an order requiring the
deponent to re-attend and submit to cross-examination on his
affidavit.
Held, the motion is allowed.
Acceptance of confirmation of an agreement and its terms
should be unconditional, and it is both unnecessary and
undesirable, in marking acceptance, to rephrase or even to
repeat the confirmation with its terms and conditions. Rejection
should always be clearly expressed and emphasized, without
appearing to comply with some of the terms and conditions,
and without endorsing, executing or otherwise using any docu
ments forwarded pursuant to the rejected proposals. Both
acceptance and rejection should be unambiguous and emphatic.
In this instance, the applicant's counsel's response appears to
have been ambiguous. The applicant's added condition,
"enfolded" within a confirmation, diluted unambiguous accept
ance of the purported agreement. As matters now stand be
tween the parties, the respondent is left with a truncated, if not
aborted, cross-examination of the applicant's deponent. When
the deponent volunteered to make his affidavit, he ought to
have known, or to have been advised, that he was thereby
assuming the obligation of submitting to cross-examination.
It must be borne in mind that the present proceeding is
neither an interlocutory one nor an examination for discovery.
It is a substantive, albeit summary, proceeding and, according
ly, affidavits are filed and cross-examinations effected as evi
dence on the principal matter at issue. With respect to the
extent of cross-examinations on affidavits in this kind of
matter, courts have held that the person making the affidavit
must submit to cross-examination not only on matters specifi
cally set forth in his affidavit, but also on those collateral
matters which arise from his answers. Indeed, he should answer
all questions upon which he can be fairly expected to have
knowledge, without being evasive, which relate to the principal
issue in the proceeding upon which his affidavit touches, if it
does. The applicant contends that its deponent's affidavit
addressed only a very narrow matter. Surely, neither a witness
testifying viva voce in court, nor a deponent whose affidavit is
tendered can be permitted to give what might be termed
"hit-and-run" evidence, or skilfully-sculped evidence, only.
The deponent's extent of knowledge and his credibility can
be tested by the respondent. Since the affidavit refers to labels
and packaging, the deponent should also submit to questions
relating to the distinctiveness of the respondent's trade mark
and design which are fairly within his knowledge. The deponent
cannot be permitted to swear to these matters and then be
protected from fair cross-examination. While the Court must
hold the respondent to its undertaking not to seek to introduce
further supplementary affidavits, the elicitation of useful evi
dence upon any of the cross-examinations of the applicant's
deponents does not constitute a breach of that undertaking.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ethicon Inc. et al. v. Cyanamid of Canada Ltd. (1977),
35 C.P.R. (2d) 126 (F.C.T.D.); Re Marchands Ro -Na
Inc. and Tefal S.A. (1980), 59 C.P.R. (2d) 139
(F.C.T.D.); Weight Watchers International Inc. v.
Weight Watchers of Ontario Ltd. (No. 2) (1972), 6
C.P.R. (2d) 169 (F.C.T.D.); Superior Discount Limited
v. N. Perlmutter & Company et al., [1951] O.W.N. 897;
Thomson v. Thomson and Elliot, [1948] O.W.N. 137
(H.C.).
COUNSEL:
François Guay for applicant.
H. Roger Hart for respondent.
SOLICITORS: ,
Lapointe Rosenstein, Montreal, for applicant.
Rogers, Bereskin & Parr, Toronto, for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: This matter arises in expunge -
ment proceedings under the Trade Marks Act
[R.S.C. 1970, c. T-10], relative to Registration
No. 141/32136 for "Minwax" and design standing
in the respondent's name. The applicant has filed
its statement of material facts and the respondent
countered with its reply. In support of its reply, the
respondent filed several affidavits.
By order of May 30, 1983 [T-433-83], Mr.
Justice Decary accorded the applicant leave to
cross-examine the deponents in support of the
respondent's reply and, as well, leave to file
"preuve supplémentaire" pursuant to Rule 704(8)
[Federal Court Rules, C.R.C., c. 663]. Following
those cross-examinations, the applicant filed the
affidavits respectively of Gerald Brendan Cough-
lan, Gerald Cayne, François Guay, Jerry Bortnick,
Hélène Dulude and Phil Chaimberg, as its further
affidavit evidence.
In the meanwhile, the respondent had lodged an
appeal in the Appeal Division against Mr. Justice
Decary's order. However, the respondent also
thought it advisable to seek to cross-examine those
who had furnished the applicant's further affidavit
evidence. Accordingly, the lawyers for the parties
crafted an arrangement in regard to these matters,
by exchanging mutual professional undertakings.
By way of confirmation, Mr. Sharpe for the
respondent wrote on October 27, 1983 to Mr.
Guay for the applicant, as follows:
Dear Mr. Guay:
Re: Swing Paints Ltd. v. Minwax Company, Inc.—Feder-
al Court Action No. T-433-83
This letter will confirm our telephone conversations on Tues-
day, October 25, and Wednesday, October 26, in regard to the
above-noted action.
I confirm that you have advised me that you would be
prepared to consent to an Order permitting us to cross-examine
Messrs. Chaimberg, Bortnick, Cayne and Coughlan, subject to
the following conditions:
(1) all cross-examinations would be completed within thirty
days of the date of the order,
(2) the cross-examination of Mr. Chaimberg would take
place in Montreal,
(3) the cross-examinations of the remaining individuals
would take place in Toronto,
(4) the respondent would pay the reasonable travelling
expenses for all of the individuals in attending for such
cross-examinations, and
(5) the respondent would discontinue its appeal from the
Order granting the applicant leave to cross-examine and to
file additional affidavit evidence.
I confirm that I have advised you that the respondent is
prepared to accept all of the terms provided that your client
consents to the discontinuance without costs. You have indicat
ed to me that you do not believe that this will cause any
problem and I have advised you that I would prepare the
various documentation for your execution. In accordance with
the agreement reached and my undertaking, I am therefore
enclosing the following documents:
(1) a letter consenting to the disposition of the motion under
Rule 324, in triplicate,
(2) a Notice of Motion for Order granting leave to cross-
examine, in triplicate,
(3) a Consent to the granting of the Order permitting
cross-examination, in triplicate,
(4) a Notice of Discontinuance, in triplicate.
We would ask that you execute all three copies of documents
numbers (1), (3) and (4) above, and that you admit service on
all three copies of document number (2) above. We would then
ask that you return two copies of the four documents to us for
filing of [sic] the Registry of the Federal Court of Canada in
Toronto or, alternatively, that you file the documents in the
Registry of the Federal Court of Canada in Montreal and
provide us with one copy of each document for our records.
We look forward to receiving the executed documents or
your confirmation that these documents have been filed to
gether with copies of the documents, as executed, in due course.
In addition, we look forward to receiving confirmation that
your unilateral application to fix a date for the hearing of this
matter has been withdrawn, and confirm that we will join in the
filing of a joint application for time and place of hearing
following the completion of the cross-examinations. We thank
you for your co-operation in this matter, and remain,
Yours very truly,
The above-mentioned letter was forwarded from
Toronto to Montreal by courier, and Mr. Guay
responded the very next day, not by one, but by
two letters. The "first", in which the promptly
signed documents were returned, runs as follows:
[TRANSLATION] Attention: Mr. Kenneth E. Sharpe
RE: Swing Paints Limited
—vs—
Minwax Company, Inc.
Our file: 12037
Dear Colleague:
Please find enclosed two duly-signed copies of each of the
documents you submitted to us, the whole in accordance with
your letter of October 27, 1983.
We wish to confirm that we have withdrawn from the Federal
Court record the unilateral inscription for hearing of the case.
We will join in due course, if possible, in the filing of a joint
application for a hearing.
We also wish to advise you that we agree to the discontinuance
being made without cost to your client.
Hoping this will be satisfactory,
Yours truly,
LAPOINTE ROSENSTEIN
François Guay
Ends.
The "second" letter from Mr. Guay to Mr. Sharpe
of October 28, 1983, is expressed thus:
[TRANSLATION] Attention: Mr. Kenneth E. Sharpe
RE: Swing Paints Limited
—vs—
Minwax Company, Inc.
Our file: 12037
Dear Colleague:
Further to our recent telephone conversation regarding the
above matter, we wish to confirm the following.
In view of your intention to file a motion to cross-examine
Messrs. Jerry Bortnick, Gerald Cayne, Gerald Brendan-Cough-
lan and Phil Chaimberg, we will not object to the filing of the
said motion, but only on the following conditions:
(a) you discontinue the appeal filed by you against the
decision of Raymond G. Decary J., dated May 30, 1983: we
will claim no legal costs in this regard;
(b) the cross-examinations of the foregoing persons will have
to be completed by the end of November: in this connection,
we should point out that Mr. Phil Chaimberg will not be
available from November 10 to 19, so his cross-examination
should proceed as quickly as possible;
(c) you undertake not to ask the Court for leave to file
additional evidence following the cross-examinations of the
four persons mentioned above: it is understood in this regard
that these cross-examinations will be limited to what is
mentioned in the affidavits only, and that you will not use the
said cross-examinations to present additional evidence;
(d) all travel costs, including transportation, hotel, meals and
any other sum that may be incurred by the witnesses in this
connection shall be paid by the respondent;
(e) the cross-examinations of Messrs. Coughlan, Bortnick
and Cayne will take place in Toronto and that of Mr. Phil
Chaimberg in Montreal.
Please let us know as soon as possible the dates you propose for
the cross-examinations so that we may make the necessary
arrangements.
Hoping this will be satisfactory,
Yours truly,
LAPOINTE ROSENSTEIN
François Guay
Matters proceeded smoothly at first, in that the
appeal was duly discontinued and the order for
cross-examination of the applicant's deponents,
upon consent and pursuant to Rule 324, was
signed by Mr. Justice Cattanach on November 7,
1983 [T-433-83]. Pursuant thereto arrangements
were made to cross-examine Messrs. Bortnick and
Coughlan in Toronto, on November 29, 1983.
Counsel for the respondent conducted and com
pleted Mr. Bortnick's cross-examination, without
objection by Mr. Guay who appeared there for the
applicant. Shortly afterwards the cross-examina
tion of Mr. Coughlan began. On this occasion, Mr.
Guay declined to permit Mr. Coughlan to answer
questions concerning any matters which were not
"restricted to the four corners of the affidavit", or
"strictly related to what was said in the affidavit",
purportedly pursuant to his agreement with Mr.
Sharpe. The applicant's counsel also further elabo
rated his objection to the scope of the intended
cross-examination, transcribed as follows:
The second reason in [sic] that I really believe that because
it is that type of case—a trademark expungement case—the
questions should be restricted to what was said by Mr. Cough-
lan in his Affidavit. Also, we could have another problem. That
is to say, Mr. Coughlan does not really want to answer some
questions that could be asked by my confrère or consoeur.
Counsel for the respondent was met by objec
tions to most of the questions which were then
actually posed, and indeed, most of the eleven
pages of transcript (Exhibit "E" to Mr. Sharpe's
affidavit) are taken up by the reported objections
and discussion by the lawyers. What occurred was
a severely truncated cross-examination if one can
so dignify the event.
The respondent now moves for an order requir
ing Mr. Coughlan to re-attend, at his own expense,
and to submit to cross-examination on his affidavit
which was sworn on July 29, 1983. Irrespective of
the jurisprudence about cross-examination on
affidavits in these circumstances, the Court's first
task is to determine whether the respondent has
agreed to forego the allowable plenitude of such
cross-examination.
Litigants are usually well served by lawyers who
agree to proceed expeditiously in order that the
real matters in dispute can be precisely defined
and promptly disposed. Civil litigation between
private parties, especially, "belongs" to the liti
gants and the Court is always pleased to accom
modate solicitors who seek to proceed by agree
ment upon interlocutory or even the ultimate
matters in issue. When one of the lawyers has
expressed confirmation of an agreement and the
conditions upon which it is to be performed, the
other lawyer ought either to accept the confirma
tion and the terms, or to reject them, if they be
incorrectly expressed.
Acceptance should be unconditional and it is
both unnecessary and undesirable, in marking
acceptance, to rephrase or even to repeat the con-
firmation with its terms and conditions. Rejection
should always be clearly expressed and empha
sized, without appearing to comply with some of
the terms and conditions, and without endorsing or
executing or otherwise using or dealing with any
documents forwarded pursuant to the rejected pro
posals. Both acceptance and rejection should be
unambiguous and emphatic.
Unfortunately, in this instance the applicant's
lawyer's response now appears to have been
ambiguous. He appeared to confirm the agree
ment, he executed or endorsed the documents and
returned them for filing in accordance with the
agreement, but then in another letter of the same
date he purported to bind the respondent's lawyer
by an added condition:
... it is understood in this regard that these cross-examinations
will be limited to what is mentioned in the affidavits only, and
that you will not use the said cross-examinations to present
additional evidence;
"Enfolded" and "wrapped up" within a confirma
tion and rephrased repetition—unnecessary and
undesirable as they are—conveyed in an added
and simultaneously forwarded letter, that added
condition diluted unambiguous acceptance, or even
rejection, of the purported agreement. It created
the problem which is now brought to court for
resolution. The applicant contends that the
respondent agreed to this condition and the
respondent denies that. The parties assume these
postures, of course, through their lawyers who
apparently failed to agree despite appearances.
If that condition means what the applicant's
counsel contends, how now do matters stand be
tween the parties? The respondent has discon
tinued its appeal. The respondent has given an
undertaking to seek no further introduction of
supplementary affidavit evidence, but rather to
join in the filing of a joint application for time and
place of hearing following the completion of the
cross-examinations. The respondent is left with a
truncated, if not aborted, cross-examination of the
affiant, Coughlan. Thus, if the applicant's added
condition is to have an effect which prevents the
respondent from further cross-examining Mr.
Coughlan, then in fairness the respondent should
be released from its undertakings. But such a
release would be regrettable in terms of proceeding
expeditiously by agreement in this matter of a
summary disposition of an expungement applica
tion. The parties have already performed most of
their undertakings. It would be inequitable, on the
other hand, to prevent the respondent from exact
ing a reasonably complete cross-examination on
Mr. Coughlan's affidavit. When the affiant volun
teered to make his affidavit, he ought to have
known, or to have been advised, that he was
thereby assuming the obligation of submitting to
cross-examination.
The matters, to the veracity of which Mr.
Coughlan swore in his affidavit, are these:
1. I am the Purchasing Agent of Mumby & Associates Ltd.
located at 1830 Mayer Side Drive, Mississauga, Ontario, a
position I have held for the last eight (8) years.
2. Since 1976, Mumby & Associates Ltd. has been acting as
distributor for Swing Paints Ltd. (hereinafter called "Swing")
for its MINWAX line of products throughout Canada.
3. One of the retail stores that was buying from Mumby &
Associates Ltd. was Routley's Paint and Wall Paper Inc.
located at 1640 Avenue Road in the City of Toronto.
4. To my personal knowledge, since 1976 "SWING" has always
packaged and shipped its MINWAX line of products to Mumby
& Associates Ltd. in cartons bearing the "Swing" name.
5. Now shown to me and marked as Exhibit "GBC-1" to this
my affidavit is a copy of the carton which is used by "Swing" in
packaging and shipping its MINWAX line of product [sic] to
Mumby & Associates Ltd.
6. All Minwax products sold since 1976 by Mumby & Associ
ates Ltd. to retailers in Canada including Routley's Paint &
Wall Paper Inc. were packaged and shipped in cartons bearing
the "Swing" name similar to Exhibit "GBC-1" to this is [sic]
my affidavit.
The respondent contends that Mr. Coughlan's
terminology, in which he refers to Swing Paints
Ltd. and "its MINWAX line of products", is of
great significance, whereas the applicant says that
it is of no significance and Mr. Coughlan might as
easily have expressed it as "the MINWAX line of
products". Whichever be the correct interpreta
tion, it could be determined on cross-examination
of Mr. Coughlan.
Now, two salient points must be borne in mind
as to the nature of this present proceeding and
those two points reside in what this proceeding is
not. It is not an interlocutory proceeding and it is
not an examination for discovery. It is a substan
tive, but summary, proceeding and, accordingly,
affidavits are filed and cross-examination effected
as and for evidence on the principal, substantive
matter at issue. In regard to the extent of cross-
examinations on affidavits in this kind of matter
Mr. Justice Walsh defined it well in the cases of
Ethicon Inc. et al. v. Cyanamid of Canada Ltd. °
and Re Marchands Ro -Na Inc. and Tefal S.A. 2 in
which he observed:
The Court must strike a fine balance between on the one
hand the desirability of dealing with proceedings of this nature
in a summary manner without unduly extending and delaying
them by permitting a multiplicity of affidavits, lengthy cross-
examination on each and an extensive production of documents,
and on the other hand, the desirability of making sure that the
Judge called upon to hear the matter on the merits of the
originating notice shall have before him all information which
is relevant and material to enable him to make a proper
decision.'
Certain general principles have emerged in the
jurisprudence. Mr. Justice Heald, in his reasons in
Weight Watchers International Inc. v. Weight
Watchers of Ontario Ltd. (No. 2) 4 incorporated
and adopted the following reasons, including this
summary:
Summarizing the above it appears that the following requi
sites are necessary in order to make a question asked on a
cross-examination on an affidavit a proper one:
(1) It must be relevant to the issue in respect of which the
affidavit is filed or to the credit of the witness, and the fact that
it may incidentally disclose evidence of the witness's case is not
of itself sufficient to make it inadmissible.
(2) It must be a fair question.
(3) There must be a bona fide intention of directing the
question to the issue in the proceeding or to the credibility of
the witness. 5
This summary, preceded by a more elaborate
exposition of reasons, was taken from the reasons
of Senior Master Marriott in Superior Discount
Limited v. N. Perlmutter & Company et a1. 6 That
case referred in turn to the judgment of Gale J. in
Thomson v. Thomson and Elliot ' in which it was
held that cross-examination on an affidavit is not
confined within the four corners of the deposition
' (1977), 35 C.P.R. (2d) 126 (F.C.T.D.).
2 (1980), 59 C.P.R. (2d) 139 (F.C.T.D.).
(1977), 35 C.P.R. (2d), at p. 132; (1980), 59 C.P.R. (2d),
at p. 142 [quoting from the Ethicon case].
4 (1972), 6 C.P.R. (2d) 169 (F.C.T.D.).
5 Ibid., at p. 172.
6 [1951] O.W.N. 897, at pp. 897-898.
[1948] O.W.N. 137 (H.C.).
but can cover matters pertinent to the determina
tion of the issue in respect of which the affidavit
was filed.
Here the applicant's counsel represents that Mr.
Coughlan's affidavit was filed only in respect of an
issue which arose in the applicant's cross-examina
tion of the respondent's deponent Mr. Doughty.
Mr. Coughlan's affidavit then, it is contended,
addresses only a very narrow matter which is, as
counsel expressed it: "contre-contre-preuve", in
that Doughty countered an issue asserted for the
applicant and Coughlan is presented only to coun
ter Doughty's testimony on that point. But surely
neither a witness testifying viva voce in court, nor
an affiant whose affidavit is tendered can be per
mitted to give what might aptly be termed "hit-
and-run" evidence, or skilfully-sculped evidence,
only.
The person making the affidavit must submit
himself to cross-examination not only on matters
specifically set forth in his affidavit, but also to
those collateral questions which arise from his
answers. Indeed he should answer all questions,
upon which he can be fairly expected to have
knowledge, without being evasive, which relate to
the principal issue in the proceeding upon which
his affidavit touches, if it does.
Here, one cannot expect Mr. Coughlan to know
about registrations of trade mark, nor all matters
which are at issue here; but he has sworn that
since 1976 the applicant has always packaged and
shipped its (or "the") Minwax line of products to
Mumby & Associates Ltd. in cartons bearing the
"Swing" name. He refers to all Minwax products
sold since 1976 by Mumby to retailers in Canada
being so packaged. He swears these matters to be
within his personal knowledge, but in his line of
business he must have learned more than these
depositions say about Minwax products, Mumby's
dealings herein and Routley's Paint & Wallpaper
Inc., since 1976. His extent of knowledge and his
credibility can be tested by the respondent. Since
he mentions labels and packaging, Mr. Coughlan
ought to submit to questions about the distinctive
ness of them and the mark in issue, in so far as
they are fairly within his knowledge and percep-
tions. He cannot be permitted to swear to these
matters and then also be protected from fair
cross-examination.
Such a cross-examination might well yield evi
dence which would be useful for the respondent, or
it might not. Objectively, that is a matter of
indifference to the Court. However, the respondent
has given its solicitors' undertaking not to seek to
introduce any further supplementary affidavits,
nor to seek cross-examination of affiants other
than Messrs. Chaimberg, Bortnick, Cayne and
Coughlan and the Court should hold it to that
undertaking. It would be no breach of that under
taking to elicit useful evidence upon any of those
cross-examinations.
During argument, counsel for both parties
seemed to accept that, if the respondent should
succeed on its motion, Mr. Coughlan should not be
required to inform himself so extensively about
matters gleaned by hearsay as if he were making
discovery on behalf of the applicant, but that he
should be required to answer under oath all ques
tions pertinent to the matters expressed in his
affidavit and collateral matters arising upon those
answers, including matters relative to the distinc
tiveness of the respondent's trade mark and design
which are within his knowledge. That would
appear to afford the respondent reasonable scope
in cross-examining Mr. Coughlan on his affidavit.
So be it.
In the circumstances of what appears to have
been a misunderstanding between the respective
solicitors for the parties, each side should now bear
its own costs, but the costs of this proceeding
should abide the outcome, follow the event and be
included among costs in the cause.
ORDER
1. IT IS ORDERED that Gerald Brendan Coughlan
do re-attend, at his own expense, to submit to
cross-examination on his affidavit, sworn on July
29, 1983; and
2. IT IS FURTHER ORDERED that Gerald Brendan
Coughlan do answer all questions on such cross-
examination which are pertinent to the matters
expressed in that affidavit as well as collateral
matters arising upon those answers, including mat
ters relative to the distinctiveness of the respond
ent's trade mark and design ("Minwax") which
are within his knowledge; and
3. IT IS FURTHER ORDERED that the costs of or
incidental to these proceedings shall abide the
outcome of the expungement proceedings and
follow the event, to be included in the disposition
of costs in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.