Date: 20030404
Docket: T-992-92
Neutral citation: 2003 FCT 403
BETWEEN:
ALMECON INDUSTRIES LIMITED
Plaintiff
- and -
ANCHORTEK LTD., EXPLOSIVES LIMITED,
ACE EXPLOSIVES ETI LTD. AND
WESTERN EXPLOSIVES LTD.
Defendants
Assessment Officer
[1] The assessment of the Plaintiff's bill of costs was called before me via teleconference on March 31, 2003. I read a draft of these reasons to counsel and informed them that I intended to make them part of the Court record with copies to be sent to the parties.
[2] The Court's Order and Reasons for Order (2003 FCT 127) dated February 5, 2003, affirmed by decision dated December 23, 2002 (2002 FCT 1325) that the assessment of the Plaintiff's bill of costs could proceed notwithstanding a pending appeal. The Court directed that cross-examination on the Plaintiff's supporting affidavit and the assessment of costs take place within one and two months respectively of the hearing of the appeal (heard February 10 and 11, 2003).
[3] Further to Registry contact with counsel for both sides on or about March 3, 2003, the assessment was set to commence on March 25, 2003, in Toronto. The letter dated March 12, 2003, from counsel for the Defendants, confirmed that the cross-examination occurred on March 7, 2003, but resulted in some questions undertaken to be answered and some questions refused to be answered. As well, said letter indicated that the parties were awaiting transcript. Accordingly, the Defendants sought an adjournment. On or about March 13, 2003, I rescheduled the assessment to March 31, 2003.
[4] The letter dated March 26, 2003, from counsel for the Defendants, asserted that the Plaintiff had not yet forwarded answers and undertakings by the agreed upon date of March 24, 2003, and therefore an adjournment was necessary and reasonable. The Defendants asserted that these responses, once received, may include a number of related documents and some time will be required to review and to consider those materials, including the taking of steps to resolve questions refused to be answered.
[5] The letter dated March 27, 2003, from counsel for the Plaintiff, characterized the cross-examination as short (approximately one and one-half hours) and resulting in a handful of outstanding questions, half of which merely confirmed information already in the Defendants' possession. The Plaintiff forwarded answers to outstanding questions and documents on March 19, 26 and 27, 2003. The Plaintiff asserted readiness to proceed on March 31, 2003.
[6] The binder containing the answers and associated documents is just under one inch thick. I make no comment about whether its contents represent difficulties in preparing to respond on the assessment of costs. However, it is clear that the process of cross-examination is incomplete, at least from the Defendants' perspective. It follows that the Defendants are not prepared to proceed on March 31, 2003.
[7] I do not comment about responsibility for this situation. I am not available in April 2003. I do, however, intend to set the earliest possible date in May or June 2003 convenient to counsel for the Plaintiff and, if possible, to counsel for the Defendants. The assessment will proceed on that date regardless of the state of readiness of the Defendants. The Defendants will have to govern themselves accordingly within that time frame concerning relief from the Court addressing questions refused to be answered and whether a motion to amend the February 5, 2003 order is necessary.
[8] Counsel for the Plaintiff indicated that the problem relative to the March 24, 2003 date was likely a function of communication difficulties between counsel. That is, he had not agreed to complete transmission of outstanding answers and documents by March 24, 2003, but rather attempting to do so by that date. He noted that some materials were, in fact, provided prior to that date. Counsel for the Defendants argued that there were not any communication difficulties and asserted that the statement in his letter dated March 26, 2003, was correct, ie. March 24, 2003 was the date agreed upon between counsel. Otherwise, counsel for the Plaintiff, in his letter dated March 27, 2003, would have corrected that assertion.
[9] Both counsel agreed to an adjournment to May 12, 2003, at 10:00 a.m. in Toronto. I indicated that I expected counsel to co-operate in resolving outstanding issues of cross-examination and in narrowing issues, where possible.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
April 4, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-992-92
STYLE OF CAUSE: Almecon Industries Limited v. Anchortek Ltd. et al.
PLACE OF HEARING: Toronto and Ottawa, ON
(by teleconference)
DATE OF HEARING: March 31, 2003
REASONS BY: Charles E. Stinson
Assessment Officer
DATED: April 4, 2003
APPEARANCES:
Henry Lue For Plaintiff
Jeremy E. Want For Defendants
SOLICITORS OF RECORD:
Dimock Stratton Clarizio LLP For Plaintiff
Toronto, ON
Smart & Biggar For Defendants
Ottawa, ON