General Motors Corp. v. Cast ( 1983 ) Ltd.
T-2536-87
Noël J.
1/6/94
8 pp.
Defendants, third party moving pursuant to R. 344 to have costs in action fixed and requesting special directives to taxing officer as to taxation of costs-Plaintiffs' action for recovery of damages concerning delivery of damaged goods dismissed "with costs"-Mode of stowage of containers by plaintiffs inadequate-Defendants, third party relying on result of proceedings, volume of work, their conduct which allegedly shortened proceedings, alleged negligence of plaintiffs in refusing to admit certain facts and in undertaking superfluous procedures-Also relying on verbal settlement offer made at early stages of proceedings which was acknowledged in writing by plaintiffs and refused-Upon consideration of result of proceedings, amount of money involved, volume of work, complexity of issues, settlement offer made early in proceedings, order giving special directions to taxing officer warranted-Plaintiffs not negligent-Defendants not shortening proceedings-As settlement offer verbal, not within R. 344(1)(g), empowering Court in awarding costs to consider "any settlement offer made in writing"-As offer acknowledged, refused in writing no evidentiary issues as to existence-Plaintiffs, defendants clearly considering offer binding from moment advanced to moment formally refused-While not squarely within R. 344(1)(g), offer's existence relevant to attribution of costs-R. 344(1)(p) permitting consideration of offer in exercise of Court's discretion-That offer and refusal made "without prejudice" not precluding consideration thereof at this stage-Settlement offers, made in contemplation of litigation, always "without prejudice"-Object to prevent use of implicit admissions at trial-Once trial completed and judgment rendered, no prejudice against which to guard-That offer made early in proceedings and represented substantial payment considered in assessment of costs-Third party entitled to maximum authorized under Tariff B and to lump sum of $5,000 for preparation of trial-Not entitled to further increase as defendants assuming lead role in preparation, conduct of trial-When reasonable offer of settlement offer refused, and when amount equal to or in excess thereof recovered at trial, trend to allow award of costs more closely reflecting actual costs incurred by successful party than otherwise: Jesionowski v. Gorecki and Ship Wa-Yas (1992), 58 F.T.R. 275 (F.C.T.D.)-Counsel for third party salaried employee-While no bar in principle to award of costs beyond tariff with regard to functions performed before courts by in-house lawyer, care must be exercised in ensuring final figure not infringing principle taxed costs should not be more than indemnity to party against expense to which put in litigation-Having regard to time spent on litigation by counsel for third party and staff, nominal and real costs associated with performance of these functions and fact while so engaged not available to perform other services, award of costs remaining much less than compensatory-Defendants entitled to increase fixed at three times maximum provided under Tariff B, s. 1(1)(b), (c), (d), (g), (i) and lump sum of $10,000 for preparation of trial-Federal Court Rules, C.R.C., c. 663, RR. 344 (as am. by SOR/87-221, s. 2), Tariff B, s. 1 (as am. idem, s. 8).