Porto Seguro Campanhia de Seguros Gerais v. Belcan S.A.
T-2057-85
Joyal J.
11/8/98
6 pp.
Motion for order revising in part order for payment out of portion of security for costs and interest accrued thereon held by Registry-Plaintiff insurer's action to recover amounts paid to insured (ship M. V. Beograd) for damages to cargo as result of collision with Federal Danube dismissed at trial; appeal dismissed in F.C.A.; appeal allowed in Supreme Court of Canada, which ordered new trial and awarded costs to plaintiff before Supreme Court and before F.C.A.-In April 1998, both plaintiff and defendants filed respective motions pursuant to R. 315, asking Court to allocate to either one or other or both, in whole or in part, amounts posted by plaintiff as security for defendants' costs in first trial-Prothonotary dismissed in full plaintiff's motion, indicating S.C.C. had not ordered parties be reinstated to status quo ante-Prothonotary also noted orders for security rendered under R. 446 should not be altered, since not future order for security could have retroactive effect to cover costs already engaged by defendant in past proceedings-Prothonotary also dismissed, in part, defendants' motion, since S.C.C. had not granted costs to them for first trial, but agreed with alternative demand that monies paid in not be touched at this time-Also ruled that plaintiff's application should be refused and amount of security should be kept in Court for ultimate disposal by trial judge at new trial-Plaintiff taking issue with Prothonotary's decision, submitting that part at least of security paid in by plaintiff should be returned-Appeal dismissed-Application of standard for intervention set down in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)-Prothonotary's decision not requiring intervention as not based on wrong principle or upon misapprehension of facts-And question of costs not vital to final issue of case at hand-Well-settled practice that costs at trial should be left to be decided by judge hearing new trial-Depending on outcome, question of costs and amount paid in to date will be subject of trial judge's ruling-In meantime, Prothonotary right in refusing to order any payment out and in maintaining status quo-Federal Court Rules, C.R.C., c. 663, R. 446 (as am. by SOR/90-846, s. 14).