PRACTICE |
Costs |
Francosteel Canada Inc. v. African Cape (The)
T-625-97
2001 FCT 1214, Morneau P.
6/11/01
9 pp.
Joint motion for award and determination of costs--In April 1997, plaintiff sued defendants for damages caused to metal coils shipment in course of carriage by sea--Final determination of liability and quantum of damages assigned to arbitrator who, in December 2000, held defendants liable for damages assessed at $85,879.44 (plaintiff had claimed damages of $485,117.99 in arbitration proceedings)--In September 1997, defendants had made formal offer to settle in amount of $125,000--Offer not revoked until November 9, 2000, four days after commencement of arbitration proceeding--Defendants relied on r. 420(2)(a) providing that where defendant makes written offer to settle that is not revoked, and plaintiff obtains judgment less favourable than terms of offer, plaintiff shall be entitled to party-and-party costs to date of service of offer and defendant shall be entitled to double such costs, excluding disbursements, from that date to date of judgment--Defendants argue that important thing is that offer was not revoked before commencement of arbitration; that offer to settle intended to avoid trial, stage at which vast portion of costs incurred; and that once trial or arbitration has begun, dynamics of offer still pending change--Costs awarded to plaintiff--One cannot read into r. 420(2)(a) same reference as that in r. 49.10(2) of Ontario Rules of Civil Procedure, which award costs to defendant from date settlement offer served if offer not withdrawn and did not expire before commencement of hearing--Federal Court Rules enacted in 1998, while most recent amendment to Ontario rules appears to date back to 1991--Therefore, r. 420(2)(a), which would award costs to defendants from date of offer, inapplicable since that offer revoked--In terms of award of costs, other factor which merits consideration, and which should govern award of costs, is result of proceeding within meaning of r. 400(3)(a)--Plaintiff won herein--Since defendants presented written offer that must be given some weight in under r. 400(3)(e) owing to its reasonable and adequate nature; and since amount recovered by plaintiff at arbitration clearly less than amount claimed therein (r. 400(3)(b)), appropriate to award plaintiff, in lieu of its assessed costs, lump sum of $40,000 (plaintiff had filed bill of costs totalling $79,015.44)--Federal Court Rules, 1998, SOR/98-106, rr. 400(3)(a)(b),(e), 420(2)(a)--Rules of Civil Procedure, O. Reg. 560/84, r. 49.10(2).