Federal Court Decisions

Date: 20070611

Docket: T-2100-05

Citation: 2007 FC 620

Montréal, Quebec, June 11, 2007

PRESENT:     The Honourable Mr. Justice Beaudry

BETWEEN:

ALPHA-MAR NAVIGATION INC.

Plaintiff

and

PRESTIGE INTERNATIONAL INC.

Defendant

REASONS FOR ORDER AND ORDER

[1]               This is an appeal by the defendant of a discretionary decision dismissing the defendant's motion for a postponement of the trial scheduled for July 31 to August 2, 2007. The decision was rendered by Prothonotary Morneau on May 29, 2007. 

[2]               In its order, the learned Prothonotary wrote:

The affidavit of Mr. Lapointe in support of the motion at bar does not indicate whether his traveling arrangements had been already made prior to the pre-trial conference held on April 17, 2007. I note in addition that Mr. Lapointe does not attach to his affidavit any documentation that would support his traveling arrangements. Finally, this motion is somehow late since it is moved one month after the holding of the pre-trial conference.

[3]               Upon hearing counsel for the parties and upon reading the material filed, I am not prepared to conduct a de novo review of the merits of the impugned decision and to consider exercising my own discretion differently for the following reasons:

1.         The defendant has failed to demonstrate that the Prothonotary's decision is “clearly wrong”, in that it was based upon an incorrect principle of law or misapprehension of the facts, or that the question raised is vital to the “final issue” in the case (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425at 454 (C.A.)), Merck & Co Apotex Inc.[2004] 2 FCR 459;

2.         The defendant has manifestly failed to meet the heavy burden of demonstrating that the Prothonotary's interlocutory decision represents the “clearest case of a misuse of judicial discretion” (see Sawridge Band v. Canada, [2002] 2 F.C. 346 at 354 (C.A.)).

[4]               The Prothonotary exercised his discretion in a rightful manner and based his decision on the evidence before him.

[5]               The Court adds that it is the responsibility of the parties to be sure of the availability of their witnesses before the pre-trial conference.

ORDER

Consequently, the appeal is dismissed, with costs.

“Michel Beaudry”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-2100-05

STYLE OF CAUSE:                          ALPHA-MAR NAVIGATION INC.

                                                            v.

                                                            PRESTIGE INTERNATIONAL INC.

PLACE OF HEARING:                    Montréal, Quebec

DATE OF HEARING:                      June 11, 2007

REASONS FOR ORDER:               BEAUDRY J.

DATED:                                             June 11, 2007

APPEARANCES:

SOLICITORS OF RECORD: