BETWEEN:
and
WINNIPEG ENTERPRISES CORPORATION
and
ROBERT J. JOHNSTON ARCHITECTURE
and
ASTROTURF SUFACES CANADA LTD.
REASONS FOR ORDER
[1] The theory is that a case should be ready for trial by the first anniversary of the issuance of the statement of claim. The practice is somewhat different. In this case, although the statement of claim was filed more than three years ago, examinations for discovery have yet to take place. Much of the delay relates to the plaintiff's tardiness in filing an affidavit of documents. Rule 223(1) of the Federal Courts Rules, requires a party to serve an affidavit of document within 30 days after pleadings are closed. However, the original statement of claim was amended in August of last year. The action is under case management. Prothonotary Morneau set down three timetables to advance the case. None appears to have been respected.
[2] On 1 March of this year, Prothonotary Morneau ordered the plaintiff to justify why the delays had not been respected, failing which the action would be dismissed for delay. He was satisfied with the reasons given and allowed the action to continue with a new timetable. The defendants, who were in the course of preparing their own motion to have the action dismissed for want of prosecution when Prothonotary Morneau issued his warning, have appealed his order, and combined it with their own motion to have the action dismissed by a judge for want of prosecution.
ANALYSIS
[3] The order of the prothonotary was discretionary in nature. The standard in appeal as slightly reformulated by the Federal Court of Appeal in Merck & Co., Inc. v. Apotex Inc. 2003 FCA 488, [2004] 2 F.C.R. 459; as per Mr. Justice Décary is as follows:
"The standard of review of discretionary orders by prothonotaries was set out by MacGuigan J.A. in Canada v. Aqua-Gem Investments Ltd.: they ought not be disturbed unless clearly wrong as based upon a wrong principle or misapprehension of facts or raise questions vital to the final issue of the case, in which case a judge should exercise his discretion de novo. The Judge added that whether a question was vital to the final issue of the case was to be determined without regard to the actual answer given by the prothonotary. In using the words "raise questions vital to the final issue of the case" rather than "are vital to the final issue of the case", emphasis was put on the subject of the orders, not on their effect. To avoid the confusion that has sometimes arisen from the wording used by MacGuigan J.A., the test should be slightly reformulated to read: discretionary orders of prothonotaries ought not be disturbed unless (a) the questions raised are vital to the final issue of the case, or (b) the orders are clearly wrong as based upon wrong principle or misapprehension of facts."
[4] The appellants/defendants submit that I am entitled to exercise my discretion de novo because Prothonotary Morneau's decision was vital to the final issue of the case, and was clearly wrong in that the plaintiff has had total disregard for the timetables set down by this Court. I disagree.
[5] Fieldturf is a purveyor of artificial turf used in sports stadiums. It claims that the defendants have breached a patent. They deny that allegation and counter that in any event the patent is invalid because it was anticipated by prior art.
[6] Fieldturf has instituted patent infringement actions against others in this Court. Those actions are still pending. In one of them, the plaintiff produced its President as its representative on an examination for discovery. He apparently proved to be so unsatisfactory that Prothonotary Morneau ordered that another individual associated therewith, Jean Prevost, be put up. In this particular case, Fieldturf agreed to make put up Mr. Prevost as its representative.
[7] The defendants hope, in fact expect, that Mr. Prevost will answer certain factual questions which will bolster their prior art position. Unfortunately, Mr. Prevost has been plagued with ill-health over the past while. He suffered a heart attack and then was diagnosed with prostate cancer for which he was operated on in February. His doctor advises that he should not be put in any stressful situation now or in the future. This means he cannot be orally examined for discovery, but would be prepared to answer written interrogatories.
[8] There are a number of reasons why Prothonotary Morneau's decision is not vital to the final issues in the case. Even if the action were dismissed for want of prosecution, a fresh action would not be time barred. This is a relevant consideration which pertains to the administration of justice (Interbox Promotion Corp. v. 9073-0433 Québec Inc. (c.o.b. Bar Café Goodfellas) (2004), 245 F.T.R. 80, 2004 FC 144).
[9] Although Mr. Prevost appears to be one of the true experts in this area, his examination on discovery would be limited to facts. If the defendants are so certain he would make beneficial admissions, it must be because they have other means of proving the same points. They may have to run up more expenses if they cannot obtain an admission, but these can be compensated by costs.
[10] In Baroud v. Canada (1998), 160 F.T.R. 91, Mr. Justice Hugessen asked two questions. What are the reasons why the case has not moved forward, and do they justify the delay that has occurred? What steps is the plaintiff now proposing to move the case along?
[11] It is too late in the day to complain about the delay in filing the affidavit. Prothonotary Morneau was obviously satisfied that the reasons offered by the plaintiff to explain the delay, particularly Mr. Prevost health, were such that the action should not be dismissed. He himself set down a new schedule, which the plaintiff had better observe at its peril. In fact, it is the defendants who now who ask that the schedule be backed up one month because of time last attributable to this appeal.
[12] I am satisfied, for these reasons, that Prothonotary Morneau's order should not be disturbed, and so I dismiss the appeal from his decision. Given that he has set out a new schedule, and that the plaintiff is not in breach thereof, the motion to dismiss for want of prosecution is dismissed as being premature.
[13] The order under appeal, dated 7 April, sets out a schedule beginning with an examination of Mr. Prevost in writing or a verbal examination on discovery of another representative of Fieldturf by 31 May 2006. Following the defendants request for an extension because of delays attributable to this appeal, and Fieldturf's acquiescence, the discovery must now take place on or before 30 June 2006. All the other delays are likewise extended one month. If a date falls on a Saturday or Sunday, the delays are extended to the following Monday.
[14] There shall be one set of costs in the cause.
"Sean Harrington"
Ottawa, Ontario
May 12, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-283-03
STYLE OF CAUSE: FIELDTURF INC. v.
WINNIPEG ENTERPRISES CORPORATION and
ROBERT J. JOHNSTON ARCHITECTURE and
ASTROTURF SUFACES CANADA LTD.
PLACE OF HEARING: Montreal, Quebec
REASONS FOR ORDER: HARRINGTON J.
APPEARANCES:
| Mr. David Assor
|
|
| Mr. Éric Ouimet
|
SOLICITORS OF RECORD:
| Spiegel Sohmer Barristers & Solicitors Montreal, Quebec
|
FOR THE PLAINTIFF
|
| BCF LLP Barristers & Solicitors Montreal, Quebec
|
FOR THE DEFENDANTS |