T-3942-81
Royal Doulton Tableware Limited, Paragon China
Limited and Doulton Canada Inc. (Plaintiffs)
v.
Cassidy's Ltd.—Cassidy's Ltée (Defendant)
Trial Division, Cattanach J.—Ottawa, October 30,
1981.
Practice — Costs — Consent application for security for
costs — Draft order departs from Form 17 by predicating the
termination of the stay of proceedings upon notice of the
deposit to the defendant's solicitor instead of upon the deposit
in Court — Amount of deposit is not stated with sufficient
certainty — Application dismissed — Federal Court Rule 446,
Form 17.
MOTION in writing pursuant to Rule 324.
COUNSEL:
No one appearing on behalf of plaintiffs.
No one appearing on behalf of defendant.
SOLICITORS:
Osler, Hoskin & Harcourt, Toronto, for
plaintiffs.
MacBeth & Johnson, Toronto, for defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: The application for security for
costs by the plaintiffs, Royal Doulton Tableware
Limited, and Paragon China Limited in the form
of the draft order sought and to which the solici
tors have consented is denied.
The form of the order sought constitutes a radi
cal departure from Form 17 to Rule 446. In Form
17 the termination of stay of proceedings is predi
cated upon the deposit of the security in Court and
it is provided that this be done within a time
certain. The draft of the order sought predicates
the end of the stay of proceedings upon notice of
the deposit to the defendant's solicitor rather than
upon the deposit in Court.
Further the Forms being an appendix to the
Rules are as much a part of the Rules as any other
part and while minor departures therefrom may be
countenanced when circumstances so dictate major
departures are not to be countenanced. The time
fixed in the Rule within which the deposit is to be
made is thirty days and a time certain should not
be replaced by times which may be agreed upon
between solicitors at will. Should the solicitors
agree between themselves that a period of thirty
days is insufficient the more appropriate time
agreed upon between the solicitors can be inserted
in the order on request. The time must be certain
to form the basis of proceedings in the event of
failure to obey the order such as contempt. If the
Form is considered to be inappropriate the remedy
is to make representations to the Rules Commit
tee.
Still further the amount of the deposit is not
recited with sufficient certainty. It may be that the
order, as drafted, contemplates that each named
plaintiff shall deposit $2,000 for a total of $4,000
or it is also susceptible that the two plaintiffs shall
jointly deposit $2,000. This lack of precision
should be resolved.
For the foregoing reasons the application has
been denied and the notice of motion endorsed
accordingly without prejudice to the defendant
renewing its application in which the difficulties
mentioned are resolved.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.