Federal Court Decisions

Decision Information

Decision Content

Date: 20010907

Docket: T-163-01

Neutral citation: 2001 FCT 1000

Toronto, Ontario, Friday the 7th day of September, 2001.

PRESENT:      Peter A.K. Giles, Esquire

Associate Senior Prothonotary

BETWEEN:

L.S. ENTERTAINMENT GROUP INC.

Plaintiff

-and-

KALOS VISION LTD. and KALOS LTD.

Defendants

REASONS FOR ORDER AND ORDER

GILES A.S.P.:

[1]        This motion for an extension of time within which to file a defence might not have arisen had counsel been aware of the emphasis placed on timeliness by the Rules and practice of this Court.


[2]        My understanding is that in May the Plaintiff was willing to consent to a motion for an extension of time until June 12th, 2001 because settlement had been attempted. A copy of the defence was served June 14th, 2001. The Defendants sought the Plaintiff's consent to an order extending the time. By June 28th, 2001, the first motion for an extension of time was filed. It was not opposed however, the Registry referred the document to me under Rule 72 because there were no written representations. I note in an addition that the motion was supported by the solicitor's own affidavit and ordered the document returned. It appears this was done on July 20th, 2001. A motion record with an Amended Notice of Motion were filed August 15th, 2001 more than a three week delay for which no excuse has been tendered.

[3]        I also note that the Plaintiff's counsel indicated that any consent he might give would be contingent on the Defendant acting promptly, which it does not appear has happened. The Plaintiff may have been willing to see the time for filing a defence extended to June, but Plaintiff's consent would not necessarily have resulted in an extension which is in the discretion of the Court. However, the fact that the Plaintiff was willing to consent, or not oppose in June, reveals there was no significant prejudice at that time. Within two days the Plaintiff's counsel had a copy of the defence and counterclaim, I therefore conclude, there would not be significant prejudice to the Plaintiff if an extension were granted.


[4]        As Defendant's counsel points out by filing a copy of the intended defence he has shown an arguable defence. I have considered the propriety of filing a document concerning which leave is sought and note that a least in this case any harm could be overcome by the Court ordering it returned when refusing the leave.

[5]        I do not propose to validate the late service of the statement of defence and counterclaim so that the Plaintiff may have a date from which to measure the filing of a defence to counterclaim and any reply should a defence and counterclaim be filed.

[6]        I intend to allow one week from the date my order is telephoned out or sent by facsimile to the parties for serving and filing the statement of defence and counterclaim and to make such time limit peremptory.   

                                                                      ORDER

1.         The Plaintiff shall have one week from the day this order is transmitted to his counsel by telephone or facsimile transmission to re-serve and file the statement of defence and counterclaim. This time limit is peremptory.

                                                                                                                           "Peter A.K. Giles"                   

A.S.P.

Toronto, Ontario

September 7, 2001


                                              FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO:                                              T-163-01

STYLE OF CAUSE:                                   L.S.      ENTERTAINMENT GROUP INC.

Plaintiff

-and-

KALOS VISION LTD. and KALOS LTD.

Defendants

CONSIDERED AT TORONTO, PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES 1998.

REASONS FOR ORDER

AND ORDER BY:                                     GILES A.S.P.

DATED:                                                    FRIDAY, SEPTEMBER 7, 2001

WRITTEN SUBMISSIONS BY:Mr. Gary M. McCallum

For the Plaintiff

Mr. Arnold B. Schwisberg

For the Defendants

SOLICITORS OF RECORD:                  WEISDORF WAUD & MCCALLUM: ASSOCIATES

Barristers & Solicitors

121 Richmond Street West

Suite 1000

Toronto, Ontario

M5H 2K1

For the Plaintiff

ARNOLD B. SCHWISBERG

Barrister & Solicitor

1595 - 16th Avenue

Richmond Hill, Ontario

L4B 3N9

For the Defendants


FEDERAL COURT OF CANADA

                                    Date: 20010907

                                                                                                              Docket: T-163-01

Between:

L.S. ENTERTAINMENT GROUP INC.

Plaintiff

-and-

KALOS VISION LTD. and KALOS

LTD.

Defendants

                                                   

REASONS FOR ORDER

AND ORDER

                                                   

 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.