Date: 20000428
Docket: T-2757-93
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
RUNWAY 66 ENTERPRISES LTD.
and JOSEPH RICCI
Defendants
REASONS FOR ORDER
HUGESSEN J.
[1] This is a motion brought by the plaintiff seeking alternatively either the striking of the statement of defence and the granting of ex-parte judgment in consequence thereof, or the granting of summary judgment on the basis of the defendants" failure to respond to a Notice to Admit under Rule 255.
[2] On the presentation of the motion, counsel for the plaintiff urged only the summary judgment aspect of the motion and it was dealt with on that basis, so I shall say no more about the motion that seeks to strike out the statement of defence.
[3] No response was filed to the summary judgment motion, but counsel for the defendants appeared upon the return of the motion and argued. As I mentioned, the primary basis upon which the summary judgment motion is founded, is the fact, and it is a fact, that a Notice under Rule 255 was served upon the defendants and despite some extensions of the normal time period of 20 days, it has not been responded to to this day and in consequence of that, by the operation of Rule 256, the facts set out in the Notice to Admit are deemed to have been admitted. Those facts are fully adequate to support the summary judgment motion and indeed, if deemed admitted, leave no lively issue for trial in the action.
[4] In his submissions, counsel for the defendants, if I understood him correctly, argued that we should not deem the facts set out in the Notice to Admit to have been admitted because the plaintiff"s own conduct had in effect amounted to a waiver of its rights under Rule 256. If I understand the argument, it is that subsequent to the service of the Notice to Admit, the plaintiff sought and obtained a consent order for the bifurcation of the issues in this trial pursuant to Rule 107 and also obtained a schedule for the holding of discoveries of the defendants. I cannot accept that argument, it seems to me that the two things are entirely separate, the bifurcation of the issues does not carry with it any acknowledgement as counsel for the defendants seemed to argue that there are lively issues on either branch o the bifurcated trial. Likewise, the setting of a schedule for the conduct of discoveries far from constituting a waiver of any rights arising under a Notice to Admit seems to me to be a circumstance which makes it all the more necessary for a Notice to Admit to be responded to if there is one outstanding. Obviously, the conduct of a discovery is going to be very coloured by what the outstanding issues are and if some of those issues have been eliminated by a Notice to Admit, then the discovery will not be as long or as complex. Where, as here, the whole of the Notice to Admit has been deem to be admitted, then it becomes unnecessary to conduct a discovery and indeed that is what has happened.
[5] Counsel for the defendants also argues that this is a technical position and that his clients should not have judgment rendered against them because of technicality. But it is not a mere technicality. The Notice to Admit was served and is outstanding. If, even today, counsel for the defendants had produced proper materials supported by an affidavit showing that it was appropriate to grant relief from the default to respond to the Notice to Admit, the Court would have given that very serious consideration. But that did not happen. To this day, there is nothing from the defendants which would allow me to say that the Notice to Admit should not have its full effect and accordingly, I am prepared to grant summary judgment in accordance with the draft order which is before me.
[6] I turn now to the question of costs. Counsel for plaintiff asks for a special order for costs and he names a sum which would amount to very nearly what I understand would be the solicitor and client costs in fact incurred by the plaintiffs. He, in argument, assigns, as I understand it, four reasons why he should have a special order for costs. The first is that the defendants have unduly delayed the prosecution of this case. While there has been some delay recently which can be ascribed to the defendants, there has also been a great deal of delay, (the action was instituted some six years ago) which, I think, has to be laid at least in part as the plaintiff"s door as well and I can see no ground there for making any special order as to costs.
[7] He also says that when discovery of the documents took place, the documents were in deplorable state and it took a great deal of time to deal with them. Well that too may be so, but I am not sure that the defendants have any obligation to keep their documents in an order which makes their discovery by the plaintiff easy. The defendants are now virtually out of business and the plaintiff"s counsel found the documents in the condition in which they were. If the examination of those documents took longer than plaintiff had anticipated, then those are costs of course, the amount of time spent on that are costs which may be taxed in the usual way.
[8] Counsel for plaintiff also invoked the fact that he had had to bring a number of motions, especially in recent months, in order to move this matter forward. There again, each motion carries with it its own costs consequences, in each motion a disposition was made one way or another with respect to costs and I do not think that there is in that circumstance, in this particular case, any reasons for making a special order as to costs.
[9] Finally, the last ground which I understood counsel for the plaintiff to advance for special orders to costs, was the flagrancy of the breach of copyright which underlies the present action. I, again, do not think that that is a ground for making a special order as to costs. There will be a reference to determine damages and if it is appropriate to award exemplary damages, then such an award can be made at that time. I do not think it proper for me, here and now, to make a special award as to costs.
[10] There will, of course, be an ordinary award as to costs in the normal manner to be taxed in accordance with Column III, the default column of Tariff B.
"James K. Hugessen"
Judge
Ottawa, Ontario
April 28, 2000