Ottawa, Ontario, November 10, 2006
PRESENT: The Honourable Mr. Justice Hugessen
BETWEEN:
MELODY FARMS SPECIALTY FOODS AND EQUIPMENT LIMITED
and COUNTRY STYLE FOOD SERVICES INC.
and
253687 ONTARIO LIMITED and PETER AZMAN
REASONS FOR ORDER AND ORDER
[1]
This
is a motion in writing seeking judgment on a failed settlement.
[2] A brief chronology is enough:
24 October 2003 - Statement of claim filed (trade-mark infringement).
29 October 2003 - Plaintiff files motion for interim and interlocutory injunction.
11 November 2003 - Motion granted.
21 November 2003 - Statement of defence filed.
29 November 2004 - Notice of status review issued.
07 January 2005 - Plaintiff files written submissions re: status review and advises that they would be prepared to proceed in a summary judgment fashion to deal with this matter on an expedited basis.
03 February 2005 - Order of McGillis J. re: status review asks that a document outlining steps remaining be filed by 28 February 2005.
22 February 2005 - Case Management Judge and Prothonotary are appointed.
28 February 2005 - Parties file a joint document re: steps remaining.
08 March 2005 - Lafrenière P. sets timetable for steps up to pre-trial conference requisition.
30 May 2005 - Counsel for the defendants removed as solicitor of record at their own request.
24 June 2005 - Notice of appointment of new solicitor filed (for defendants).
21 November 2005 - Requisition for pre-trial conference filed by plaintiffs.
05 April 2006 - New counsel for the defendants files a motion to be removed as counsel.
12 April 2006 - Pre-trial conference takes place and the Court grants counsel for the defendants’ motion to be removed as counsel on the consent of his client Mr. Azman. Mr. Azman was informed by the Court that while he can represent himself in future Court proceedings, he cannot do so for his corporation. Counsel would have to be retained to do so. The parties reached a settlement at the conclusion of the pre-trial conference and Mr. Azman presented counsel for the plaintiffs with a cheque made out to the latter, in trust. The settlement was noted in the Court Record.
02 June 2006 - Letter from plaintiffs' counsel advising the Court that Mr. Azman's cheque did not clear and asking Lafrenière P. if he would be willing to entertain a motion in writing for judgment.
04 August 2006 - Lafrenière P. directs that a motion for judgment be served and filed no later than September 5, 2006. By a later Direction this time was extended to September 18, 2006 on which date the present motion was filed.
[3]
The
defendants have not responded to the motion in writing other than by telephone
calls to the Registry seeking the holding of a Case management conference.
Since no purpose could be served by such a conference the request was refused.
In particular the defendants have not filed any material in response to the
motion.
[4] The evidence establishes that the cheque given by defendants in settlement has not been honoured by the bank. Plaintiffs are entitled to judgment in the amount of the settlement, together with interest and costs.
ORDER
THIS COURT ORDERS that:
Defendants shall pay
plaintiffs the amount of $13,500 together with interest from April 12, 2006 and
costs to be assessed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1992-03
STYLE OF CAUSE: MELODY FARMS SPECIALTY FOODS AND EQUIPMENT LIMITED ET AL v. 253687 ONTARIO LIMITED and PETER AZMAN
MOTION IN WRITING PURSUANT TO RULE 369
WRITTEN SUBMISSIONS BY:
|
ARNOLD H. ZWEIG
|
|
|
|
|
SOLICITORS OF RECORD:
|
ARNOLD H. ZWEIG TORONTO, ONTARIO
|
|
|
|
|