Date: 19980317
Docket: T-1639-96
BETWEEN:
EXPRESSVU INC.,
ALLARCOM PAY TELEVISION LIMITED,
THE FAMILY CHANNEL INC., and
TMN NETWORKS INC.
Plaintiffs
- and -
NII NORSAT INTERNATIONAL INC. c.o.b. 'AURORA DISTRIBUTING',
PRICE COSTCO CANADA INC., DSI CANADA INC.,
ERNST & YOUNG as trustee in bankruptcy of
THE (DISCOUNT) STEREO STORE LTD. c.o.b. 'BASE ELECTRONICS',
BASE ELECTRONICS CORP. and J. SONIC SERVICES
Defendants.
REASONS FOR ORDER
GIBSON J.:
[1] By Order dated the 20th of February, 1998, I granted relief to the plaintiffs as against the six separate defendants identified in the style of cause. In each case, the relief was tailored to the state of the litigation as it then existed between the plaintiffs on the one hand and each of the separate defendants. As against the defendant NII Norsat International Inc. c.o.b. "Aurora Distributing" ("Norsat"), the relief granted read in part as follows:
| 1. With respect to the Defendant NII Norsat International Inc. c.o.b. "Aurora Distributing", summary judgment, as it relates to the claims of the Plaintiffs under section 18 of the Radiocommunication Act, is granted as against NII Norsat International Inc. c.o.b. "Aurora Distributing" pursuant to the Plaintiffs' Notice of Motion herein dated the 14th of May, 1997 and made returnable the 23rd of June, 1997; and, on consent on behalf of NII Norsat International Inc. c.o.b. "Aurora Distributing", Canadian Artists Entertainment Inc., and Diamond Pacific Inc., a permanent injunction is granted in the following terms: |
| .... |
| The Plaintiffs' motion to add Canadian Artists Entertainment Inc. and Diamond Pacific Inc., as Defendants is withdrawn, on consent. In all other respects, the Plaintiffs' Motion dated the 14th of May, 1997 and made returnable the 23rd of June, 1997 is adjourned. No order as to costs to date. |
I have omitted quoting the terms of the permanent injunction granted as those terms are not relevant for the purposes of these reasons.
[2] By motion filed the 2nd of March, 1998 and heard by me the 9th of March, 1998, Norsat seeks reconsideration of the terms of my order, as it relates to Norsat, and more particularly, seeks removal of the opening words commencing "With respect to the Defendant NII Norsat..." and ending "...made returnable the 23rd of June, 1997; ..." as they appear at the beginning of the quotation from my order, above. The basis of Norsat's motion is Rule 337(5) of the Federal Court Rules1 which reads as follows:
| (5) Within 10 days of the pronouncement of judgment under paragraph (2)(a), or such further time as the Court may allow, either before or after the expiration of that time, either party may move the Court, as constituted at the time of the pronouncement, to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others: (a) that the pronouncement does not accord with the reasons, if any, that may have been given therefor; (b) that some matter that should have been dealt with has been overlooked or accidentally omitted. |
(5) Dans les 10 jours du prononcé d'un jugement en vertu de l'alinéa (2)a), ou dans tel délai prolongé que la Cour pourra accorder, soit avant, soit après l'expiration du délai de 10 jours, l'une ou l'autre des parties pourra présenter à la Cour, telle qu'elle est constituée au moment du prononcé, une requête demandant un nouvel examen des termes du prononcé, mais seulement l'une ou l'autre ou l'une et l'autre des raisons suivantes : a) le prononcé n'est pas en accord avec les motifs qui, le cas échéant, ont été donnés pour justifier le jugement; b) on a négligé ou accidentellement omis de traiter d'une question dont on aurait dû traiter. |
No reasons were given for my order of the 20th of February, 1998.
[3] There is no doubt that, on the 4th of February, 1998, during the hearing of the motion giving rise to the Order of the 20th of February, 1998 (the "Order"), I was under a misapprehension as to the state of the litigation with respect to Norsat. The transcript of the hearing discloses that, prior to the arrival in the courtroom of counsel for Norsat at the hearing, I stated:
| I will grant the Summary Judgment as requested in Document 7 in the Brief of Pleadings and Order, which is the Applicant's Motion, the Plaintiff's Motion for Summary Judgment, as I did with respect to Norsat, only in respect of the Section 18 Claim, as I did in Norsat in respect to Norsat. |
At that stage of the proceedings on the 4th of February, in the absence of counsel for Norsat, I had granted nothing in respect of Norsat. I can only assume that I was under the impression that I had granted summary judgment against Norsat at an earlier date.
[4] After the arrival of counsel for Norsat, I made the following statement:
| So both the Motion for Summary Judgment and the Action itself remain outstanding in all respects except the Summary Judgment having already been granted against Norsat in respect of Section 18 of the Radiocommunications Act only, and this Injunction will go as against Norsat. |
[5] Counsel for Norsat responded to the foregoing:
| That's correct. |
[6] Thus, it was clear that, during the hearing of February 4th, I was under the impression that partial Summary Judgment had already been granted in respect of Norsat. This was incorrect. In an Order dated the 1st of August, 1997, I provided in part that:
| The application for summary judgment on behalf of the Plaintiffs, as it relates to the claims of the Plaintiffs under section 18 of the Radiocommunication Act, |
| ... |
| (b) would be granted as against the Defendant[s] NII Norsat International Inc. c.o.b. "Aurora Distributing"... but for the fact that there remains outstanding on behalf of [that] Defendant[s] the issue of whether paragraph 9(1)(c) of the Radiocommunication Act offends against section 2(b) of the Canadian Charter of Rights and Freedoms, as being an unjustifiable limitation on the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication and is therefore unconstitutional and without force or effect, which issue has not yet been argued before the Court and is reserved for consideration at a date and time to be fixed by the Court on application on behalf of [either] such Defendant or the Plaintiffs. For that reason only, the application for summary judgment is adjourned as against [that] Defendant[s]. |
| The conclusions reflected in this paragraph are based on reasons as set out in Reasons for Order in this matter dated the 23rd of July, 1997, in support of an Order dated that day. |
[7] Nothing transpired between the 1st of August, 1997 and the 4th of February, 1998 that impacted on the situation as between the Plaintiffs and Norsat, as set forth in the foregoing quotation.
[8] Following the hearing on the 4th of February, by agreement with counsel, and because of the length and complexity of the Order flowing from the 4th of February hearing, a draft order was circulated. Comments were received from counsel. Some modifications to the draft order were made resulting in the final form of the Order as issued on the 20th of February. In that time period, the portion of my Order here under consideration was modified to reflect the fact that summary judgment was not being granted against Norsat on consent, but was nonetheless being granted.
[9] The issue then that was before me on Norsat's motion for reconsideration was whether or not my Order accorded with the reasons given, and no reasons were given, or whether some matter that should have been dealt with was overlooked or accidentally omitted. The wording of Rule 337(5) makes it very clear that these are the only grounds on which I can reconsider and modify my Order.
[10] In Archibald v. Canada,2 Mr. Justice Muldoon reviewed a number of judgments of the Trial Division and Appeal Division of this Court under Rule 337(5), which he refers to as the "slip rule". He wrote:
| This rule is designed to provide the Court with a means of reconsidering the terms of its pronouncement if the Court, not the parties, has erred in some way. |
| In general, both the Appeal and Trial Divisions of this Court have interpreted this |
| Rule narrowly, emphasizing on the finality of judgments, yet providing the Court with a means to correct errors. |
[11] I conclude that there was no "slip" or error in the portion of my order of the 20th of February sought to be reviewed. There is no question, as indicated earlier, that at the hearing on the 4th of February, leading to the Order, I was under the misapprehension that Summary Judgment had already been granted against Norsat on the limited basis of the claim under the Radiocommunication Act. If I had continued under that misapprehension, there might well have been a "slip" or error on the part of the Court. But I conclude that I did not continue under that misapprehension. Summary Judgment was granted as against Norsat by my Order of the 20th of February, because I came to realize that it had not previously been granted.
[12] Norsat consented to the portion of the Order of the 20th of February providing for a permanent injunction against it. No basis exists for the Court to order a permanent injunction against a defendant in the absence of judgment against that defendant. Thus, I concluded that, by consenting to the permanent injunction, Norsat implicitly acknowledged that a grant of summary judgment against it was appropriate. In the result, in the absence of a preexisting summary judgment, and with an outstanding motion for summary judgment before the Court, which I had indicated I was prepared to grant but for the constitutional issue, I concluded that Norsat had abandoned the opportunity reserved to it to mount the constitutional challenge under paragraph 2(b) of the Canadian Charter of Rights and Freedoms.
[13] Summary judgment issued against Norsat in my order of the 20th of February, not on the basis of explicit consent, but on the basis that, absent any foundation for the grant of a permanent injunction on consent, with consent to the issuance of a permanent injunction before me, and with a motion outstanding before the Court on which such a foundation could be provided, it was both necessary and appropriate for the Court to provide the foundation on the basis of what I considered to be an implication of consent. Thus, no "slip" or other error exists which would provide a basis for reconsideration under Rule 337(5).
[14] I refer once again to the misapprehension that I entertained at the hearing on the 4th of February, 1998. That misapprehension should have been apparent to counsel present at the hearing. Counsel, for whatever reason, did not disabuse me of that misapprehension. If I had been disabused of my misapprehension, there would then have been a forum in which counsel could have addressed the Court's concern that a permanent injunction, granted on consent, required a foundation by way of judgment. Unfortunately, that opportunity did not materialize. But that fact alone provides no basis on which the Court is entitled to review its order under the terms of Rule 337(5).
[15] For the foregoing reasons, Norsat's application for review of a portion of my order of the 20th of February, 1998 is dismissed. By consent between counsel, there will be no order as to costs.
____________________________
Judge
Ottawa, Ontario
March 17 , 1998
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