Date: 20000830
Docket: T-1166-98
OTTAWA, ONTARIO this 30th day of August 2000
PRESENT: The Honourable Mr. Justice Pelletier
BETWEEN:
POLYGRAM RECORDS LTD., HONG KONG;
and POLYGRAM CANADA INC.
Plaintiffs
- and -
KIN MO ENG
Carrying on Business as "Golden Melody", "Trinity
Records Ltd." and "Hwa Yin Laser Disc Co. Ltd.";
LIEN TU TRAN
Carrying on Business as "Golden Melody", "Trinity
Records Ltd." and "Hwa Yin Laser Disc Co. Ltd.";
YUEN ENG
Carrying on Business as "Golden Melody", "Trinity
Records Ltd." and "Hwa Yin Laser Disc Co. Ltd."
| Defendants |
REASONS FOR ORDER AND ORDER
[1] This is an application for reconsideration of an order dismissing the plaintiffs" claim for failure to file further submissions as required in the course of status review of this claim. The application is brought pursuant to Rule 397 of the Federal Court Rules, 1998 , on the ground that the failure to file submissions was inadvertent. The Motion Record submitted with respect to the motion contains the Notice of Motion and the Affidavit of Geoffrey Ken Thompson but no written submissions. It is made outside the time provided in Rule 397 and has not been served on the defendants. The plaintiffs seek an order extending the time for making the application as well as an order dispensing with service of the motion on the defendants.
[2] The affidavit of Geoffrey Ken Thompson sets out that the order dismissing the claim, dated June 23, 2000, was not received in Mr. Thompson"s office until June 29, 2000 and that compliance with the 10 day limit imposed by Rule 397 is unreasonable. The Court file discloses that a registry officer telephoned Mr. Thompson"s office on June 27 to advise of the order and that the message was taken by an individual in his office. Be that as it may, I am prepared to deal with the motion on its merits. There will therefore be an order extending the time for the bringing of the application to reconsider.
[3] The merits of the motion are not as obvious as the plaintiffs" failure to file written submissions might suggest. While there is some variance in the jurisprudence of this Court as to the exact scope of the Rule, there does appear to be broad agreement that it applies to a mistake by the Court and not to a mistake by counsel. See Boateng v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 472 (F.C.A.), (1990), 112 N.R. 318. In this case, the failure to respond to a filing requirement due to inadvertence is the only ground advanced as justification for the order sought. This is not sufficient.
[4] As Lutfy J. pointed out in Dan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 638, after a careful review of the authorities, the power to reconsider goes to an error by the Court in making its order. See also Haque v. Canada (Minister of Citizenship and Immigration, [2000] F.C.J. No. 1141. That is not the case here.
[5] For these reasons, the application for reconsideration is dismissed.
ORDER
UPON motion by counsel for the applicant for reconsideration of the Order of June 23, 2000 dismissing the plaintiffs" claim; and
UPON reading the affidavit of Geoffrey Ken Thompson;
THIS COURT HEREBY ORDERS THAT:
The application for reconsideration is dismissed.
"J.D. Denis Pelletier"
Judge