Date: 19991206
Docket: T-2161-98
MONTREAL, QUEBEC, THIS 6th DAY OF DECEMBER 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN; JAMES FISHER & SONS PLC
Applicant
AND
PEGASUS LINES LIMTIED S.A.
Respondent
REASONS FOR ORDER and ORDER
PELLETIER, J.:
[1] At the conclusion of the hearing of this matter, I allowed the appeal to the extent of varying the order made by Prothonotary Morneau to remove the references in the order to the question of costs. I did so because the question of costs is dealt with in the order of Lutfy J. pursuant to which Mr. Karathanos was examined. Rule 50(1)g) provides that a prothonotary may not hear motions to vary an order of a judge. It follows that a prothonotary may not vary an order of a judge. In this case, Prothonotary Morneau made an order which, in effect, varied the order of Lutfy J., a power which is beyond his jurisdiction. I also indicated that I would provide written reasons on the issue of the costs of the appeal itself.
[2] To the extent that the order was varied, the Applicant was successful in his motion. However, when one examines the Notice of Motion by which this appeal was brought, one notes that the relief sought is the setting aside of the entire order and that the grounds upon which such relief is claimed is that Mr. Karathanos was not in breach of any of the requirements set out in the first portion of Rule 97 and consequently, the Prothonotary did not have any basis upon which to make an order pursuant to that Rule. The issues raised in the Notice of Motion were not canvassed because counsel chose to limit his representations to the question of the Prothonotary"s jurisdiction, which had the effect of considerably shortening the time required for the hearing of the motion. On the other hand, counsel for the Respondent came to Court prepared to argue the motion as set out in the Applicant"s motion record and ended up arguing a matter which had not been previously raised. Had the question of costs been raised earlier, she says, it is quite possible that no appearance would have been required.
[3] As noted above, Lutfy J. ordered that costs could be sought at the end of the examination. Having read his reasons carefully, I am of the view that he made that order so that the question of costs could be decided once all the facts were in. The facts would include such matters as the extent of Mr. Karathanos" compliance with the terms of Lutfy J."s order. While his order would not bind me in terms of dealing with the costs of this motion, I find that the interests of justice will be best served if all questions of costs are considered together. I therefore leave the question of the costs of this motion to be dealt with by the judge who will deal with the question of the costs of the examination itself.
O R D E R
Whereas the Honourable Mr. Justice Lutfy ordered that costs of the examination in aid of execution of James Karathanos could be sought at the conclusion of the said examination; and
Whereas the equities of the costs of this motion ought to be considered in the context of the overall disposition of costs in the proceeding; and
Now therefore, it is hereby ordered that the costs of this motion are to be dealt with by the judge who hears the application to determine the amount of, and liability for, the costs of the examination itself
J.D. Denis Pelletier
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2161-98
STYLE OF CAUSE: JAMES FISHER & SONS PLC
Applicant
AND
PEGASUS LINES LIMITED S.A.
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 6, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PELLETIER
DATED: December 6, 1999
APPEARANCES:
Ms. Mireille A. Tabib for the Applicant
Mr. George J. Pollack for the Respondent
and for Mr. James Karathanos
SOLICITORS OF RECORD:
STIKEMAN ELLIOTT
Montreal (Quebec) for the Applicant
SPROULE CASTONGUAY POLLACK
Montreal (Quebec) for the Respondent
and for Mr. James Karathanos