TMR Energy Ltd. v. Ukraine

TMR Energy Ltd. v. Ukraine Court (s) Database Federal Court of Appeal Decisions Date 2005-06-17 Neutral citation 2005 FCA 231 File numbers A-496-04, A-497-04 Decision Content Date: 20050617 Docket: A-496-04 A-497-04 Citation: 2005 FCA 231 CORAM: DÉCARY J.A. NADON J.A. SEXTON J.A. BETWEEN: TMR ENERGY LIMITED, a duly constituted legal person incorporated under the laws of Cyprus Appellant (Applicant) and STATE PROPERTY FUND OF UKRAINE, an organ of the State of Ukraine Respondent (Respondent) and ANTK ANTONOV Respondent (Intervener) and STATE OF UKRAINE Respondent (Intervener) Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on June 17, 2005. REASONS FOR ORDER AS TO COSTS BY: DÉCARY J.A. CONCURRED IN BY: NADON J.A. SEXTON J.A. Date: 20050617 Docket: A-496-04 A-497-04 Citation: 2005 FCA 231 CORAM: DÉCARY J.A. NADON J.A. SEXTON J.A. BETWEEN: TMR ENERGY LIMITED, a duly constituted legal person incorporated under the laws of Cyprus Appellant (Applicant) and STATE PROPERTY FUND OF UKRAINE, an organ of the State of Ukraine Respondent (Respondent) and ANTK ANTONOV Respondent (Intervener) and STATE OF UKRAINE Respondent (Intervener) REASONS FOR ORDER AS TO COSTS DÉCARY J.A. [1] In the Judgment issued on January 24, 2005, the Court granted the three respondents their costs on appeal based on one set of costs for both appeals A-496-04 and A-497-04. [2] The three respondents are seeking costs on a solicitor-client basis. State Property Fund of Ukraine is seeking an amount of $135,824.75, Antk Antonov, $280,707.28, and the State of Ukraine, $73,051.51, for a global sum of $489,583.54, as of January 28, 2005. [3] I express no view, of course, as to the basis on which costs ought to be awarded in the Federal Court, as we are concerned, here, solely with the costs of the appeals . [4] I have not been persuaded that costs should be awarded on a solicitor-client basis. Such costs are generally awarded only where "there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties" and "in exceptional cases" (Baker v. Canada, [1999] 2 S.C.R. 817 at 864). [5] I have found no inappropriate behaviour on the part of counsel for the appellant neither in initiating the appeals nor in conducting them. The issues raised were serious and gave rise to considerable debate amongst the members of the panel. [6] I am prepared, however, using the precedent set out in Consorzio del Prosciutto di Parma v. Maple Leaf Meats Inc., [2003] 2 F.C. 451 (C.A.), to grant increased costs, inclusive of fees, disbursements and GST as well as costs of these motions in the form of a lump sum. [7] As noted by my brother Rothstein J.A. in Consorzio, at paragraph 7, the increased costs to be awarded are party-and-party costs, they do not indemnify the successful parties for their solicitor-client costs and they are not intended to punish the unsuccessful party for inappropriate conduct. An award of increased party-and-party costs is not, to use his words at paragraph 8, "an exercise in exact science." And, as he noted at paragraph 10, the amount of solicitor-client costs is not determinative of an appropriate party-and-party contribution, but it may be prudently taken into consideration. [8] In the case at bar, I do not think that the appellant should be penalized for the fact that it was facing three respondents which chose to duplicate in many regards work already done by one of them. In the circumstances, and having regard to the submissions of all parties, I would award each respondent, as increased party-and-party costs, some 40% of its stated solicitor-client costs, inclusive of fees, disbursements and GST and the costs of this motion, rounded in a lump sum of $35,000.00 for the State Property Fund of Ukraine, $70,000.00 for Antk Antonov and $18,000.00 for the State of Ukraine. "Robert Décary" J.A. "I agree. M. Nadon, J.A." "I agree. J. Edgar Sexton, J.A." FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-496-04 / A-497-04 STYLE OF CAUSE: TMR Energy Limited v. State Property Fund of Ukraine et al MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: DÉCARY J.A. CONCURRED IN BY: NADON J.A. SEXTON J.A. DATED: June 17, 2005 WRITTEN REPRESENTATIONS BY: Richard L. Desgagnés Brian Daley Azim Hussain FOR TMR ENERGY LIMITED George J. Pollack Louis-Martin O'Neill Brian Kujavsky FOR STATE PROPERTY FUND OF UKRAINE Chris G. Paliare FOR ANTK ANTONOV F.J.C. Newbould, Q.C. Lubomir Kozak, Q.C. FOR THE STATE OF UKRAINE SOLICITORS OF RECORD: Ogilvy Renault LLP Montreal, Québec FOR TMR ENERGY LIMITED Davies Ward Phillips & Vineberg LLP Montreal, Québec FOR STATE PROPERTY FUND OF UKRAINE Paliare Roland Rosenberg Rothstein LLP Toronto, Ontario FOR ANTK ANTONOV Borden Ladner Gervais LLP Toronto, Ontario FOR THE STATE OF UKRAINE