PRACTICE |
Costs |
Havana House Cigar & Tobacco Merchants Ltd. v. Persons Unknown
T-2521-97
Gibson J.
9/11/00
18 pp.
On solicitor-client basis--On plaintiffs' discontinued action against Kozy Korner's, Copa-Habana--Plaintiffs producers and/or distributors of genuine Cuban cigars--Defendant/plaintiff by counterclaim Kozy Korner's operating retail food and convenience store where sale of cigars minor part of retail business--Defendant/plaintiff by counterclaim Copa-Habana engaged in retail and wholesale distribution of cigars--Latter consignor of cigars to Kozy Korner's--Plaintiffs obtained Anton Piller order with undertaking as to damages--Counterfeit or non-duty-paid cigars seized in several stores pursuant to order--Pursuant to Federal Court Rules, 1998, r. 402, party against whom action discontinued entitled to costs forthwith--At hearing, Kozy Korner's and Copa-Habana urged that they did not seek to penalize plaintiffs who discontinued action against them but rather to characterize costs award above normal scale as damages recoverable against plaintiffs' undertaking in damages given in Anton Piller order issued in their favour--Applying Church of Jesus Christ of Latter Day Saints v. King (1998), 41 O.R. (3d) 389 (C.A.), award of costs on solicitor-client scale, as damages, not warranted--Undertaking as to damages not applicable in respect of Copa-Habana as Anton Piller order not served on that defendant and no injunction thus obtained against Copa-Habana--Allegations made against Kozy Korner's fall short of fraud but nonetheless serious--On evidence, not baselessly made and Court cannot conclude their impact and granting of interlocutory relief seriously affected Kozy Korner's--Allegations contained in statement of claim hardly central to reputation of convenience store or of owner--Any damages that might arise with respect to Kozy Korner's here do not arise out of unauthorized execution of order or as result of setting aside of order because no setting aside took place--Based on King, not appropriate case for award of costs on solicitor-client scale as damages against undertaking in damages--However, normal application of Federal Court Rules, r. 402 should prevail--Therefore Kozy Korner's and Copa-Habana should be entitled to costs on ordinary scale--As to whether assessment of costs by reference to actual expenditures could reasonably be undertaken, most appropriate course of action to award costs to Kozy Korner's and Copa-Habana determined solely by reference to what could be gleaned from material before Court and applied to tariff--Costs fixed on lump sum basis rather than refer issue of costs to assessment--After hearing proposals from both sides, defendants' proposals more realistic--Both sides to bear own costs of present motion--Federal Court Rules, 1998, SOR/98-106, r. 402.