Date: 20030124
Docket: T-1473-91
Neutral citation: 2003 FCT 74
BETWEEN:
REMO IMPORTS LTD.
Plaintiff
(Defendant by Counterclaim)
- and -
JAGUAR CARS LIMITED and
FORD MOTOR COMPANY OF CANADA, LIMITED/
FORD DU CANADA LIMITÉE carrying on business as
JAGUAR CANADA
Defendants
(Plaintiffs by Counterclaim)
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1] By motion dated the 1st of October, 2002, the Defendants sought an order granting them leave to amend their Statement of Defence and Counterclaim, dated the 6th of March, 1992, in a number of respects. While a range of the amendments sought were of a "housekeeping" nature, some were more substantive including an amendment to add Moise Bassal as a defendant to the Defendants' Counterclaim and to make amendments consequential on that addition.
[2] By order dated the 9th of December, 2002, Prothonotary Lafrenière granted leave to make certain of the requested amendments and denied leave with respect to others, including the proposed addition of Moise Bassal as a defendant to the Defendants' Counterclaim and consequential amendments flowing from that addition.
[3] These reasons arise out of an appeal by way of motion from Prothonotary Lafrenière's denial of leave to add Moise Bassal as a defendant to the Defendant's Counterclaim and to make related consequential amendments. More specifically, the Defendants seek the following relief on their appeal:
1. An order allowing the appeal of the Order of Mr. Lafrenière, Prothonotary dated December 9, 2002 in respect of the refusal to grant the Defendants, Plaintiffs by Counterclaim (the "Defendants") leave to add Moise Bassal ("Bassal") as a defendant to the counterclaim and the related refusal to grant the Defendants leave to amend paragraphs 28, 29, 33, 34, 35, 36(2)(c) and (d), 36(4) and 36(5) of the Proposed Amended Defence accordingly;
2. Extending the time for service of this motion if necessary;
3. Costs of this motion and below; and
4. Such further and other relief as to this Honourable Court seems just.
[4] Apparently the Defendants' desire to add Mr. Bassal as a defendant to their counterclaim arose out of their discovery at an examination for discovery of Mr. Bassal, on behalf of the plaintiff, conducted on the 7th of September, 1996, that Mr. Bassal was the sole shareholder of the Plaintiff, its president and its directing mind[1].
THE DECISION UNDER APPEAL
[5] In recitals to his order, a portion of which is here under appeal, Prothonotary Lafrenière wrote:
...
AND UPON reading the motion records of the parties and hearing the submissions of counsel for both parties on November 26, 2002, including the undertaking by the Defendants' counsel not to conduct further discovery in relation to the proposed amendments;
I am substantially in agreement with the written submissions filed on behalf of the Plaintiff that a number of the proposed amendments should be refused on the grounds that the amendments would inevitably create further, unacceptable delay in this proceeding. Amendments should be allowed unless they cause a prejudice which cannot be compensated by an award of costs. Although every amendment to pleadings may cause some delay, some delays are far more consequential than others. I find that the proposed amendments, with which the Plaintiff takes issue, are not merely "housekeeping" matters, as suggested by counsel for the Defendants. Some amendments raise completely new causes of action, while others raise the prospect of re-opening discovery on allegations that have already been the subject of numerous and protracted interlocutory motions and appeals.
Given the manner and pace at which this decade-old proceeding has progressed to date, it is highly likely that another round of discoveries will have to be conducted if the proposed amendments are allowed, and this despite the Defendants' undertaking not to conduct further discovery. The Court, in its case management capacity, has been asked to intervene on numerous occasions to resolve interlocutory disputes between the parties, and discovery by the parties is now substantially complete. To allow further amendments at this stage of the proceeding would simply serve to frustrate the Plaintiff's attempts to obtain a trial date. Moreover, an order for costs would not provide adequate compensation to the Plaintiff that has, until recently, been unable to requisition a pre-trial conference because it could not certify that its discovery was completed. In cases where justice has not been pursued with unqualified resolve, justice delayed is, for a party seeking its day in court, justice denied. [emphasis added]
[6] The paragraph of Prothonotary Lafrenière's order that is at issue in this appeal reads as follows:
12. Leave to add Moise Bassal as a Defendant to the Defendants' Counterclaim and to amend paragraphs 28, 29, 33, 34, 35 and 36(2)(c) and (d), 36(4) and 36(5) in the Defendants' Amended Counterclaim is refused. The request for leave to make these amendments was made too late in the prosecution of these proceedings and, if allowed, would cause serious prejudice to both the Plaintiff, in bringing the matter to trial, and to Mr. Bassal, in defending himself against the new allegations.
THE ISSUES
[7] The issues on this appeal are identified on behalf of the Defendants as the following:
- First, what is the appropriate standard of review;
- Second, whether Moise Bassal, the sole shareholder and directing mind of the Plaintiff, should be added as an individual defendant to the counterclaim; and
- Third, whether Prothonotary Lafrenière erred and/or was clearly wrong in:
- failing to consider whether Mr. Bassal's presence before the Court is necessary to ensure that all matters in dispute are effectively and completely determined and whether the proposed allegations in the Defence and Counterclaim disclose a reasonable cause of action against Mr. Bassal;
- finding that adding Mr. Bassal would result in another round of discoveries and inevitably create further unacceptable delay in obtaining a trial date; and
- finding that adding Mr. Bassal would cause serious prejudice to the Plaintiff in bringing the matter to trial and to Mr. Bassal in defending himself.
ANALYSIS
1) Standard of review
[8] In Canada v. Aqua-Gem Investment Ltd.[2] Justice McGuigan, for the majority, cited authority for the proposition that discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or they raised questions vital to the final issue of the case. Justice McGuigan continued at page 463:
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
[9] Justice McGuigan noted that the phrase "the final issue of the case" is quite different from "the final issue in the case." He noted that Lord Wright from whom the expression was drawn meant "vital to the result of the case" rather than "vital to the ultimate issue on the merits of the case."
[10] By Order dated September 6th, 2000, issued by the Associate Chief Justice, Justice Hugessen was designated as the case management judge in respect of this action and Prothonotary Lafrenière was named to assist in its case management. Thus, it is fair to assume that Prothonotary Lafrenière has, since that date if not before, acquired a high degree of familiarity with the progress of this action.
[11] In Sawridge Band v. Canada[3], Justice Rothstein, for the Court, wrote at paragraph 11 of the Court's reasons:
We would take this opportunity to state the position of this Court on appeals from orders of case management judges. Case management judges must be given latitude to manage cases. This Court will interfere only in the clearest case of a misuse of judicial discretion.
[12] In further reasons issued contemporaneously with the reasons from which the foregoing quote is extracted[4], Justice Rothstein, once again for the Court, and by reference to the reasons from which the foregoing quotation is drawn, wrote at paragraph [4]:
Questions of joinder and severance are quintessential subject matters of case management. Such questions are to be decided by the exercise of discretion by a case management judge familiar with the proceedings. On appeal, a court would interfere with such decisions only where there is demonstrated a clear misuse of judicial discretion. ... [citation omitted]
[13] I extended the same principles to the role of case management prothonotaries and to the relationship between case management prothonotaries and judges of the Trial Division of this Court sitting on appeal from their decisions[5]. At pages 16 and 17 of the cited report of my reasons, I wrote:
Case Management prothonotaries, like Case Management judges, are familiar with the proceedings that they are managing to a degree that a trial judge, sitting on appeal from a prothonotary's discretionary decision in such a context, usually cannot be.
While some may have regarded such an "extension" as superfluous since "case management judge" is defined in Rule 2 of the Federal Court Rules, 1998[6] to include a case management prothonotary, I did not share that view since Justice Rothstein was writing for the Court of Appeal and appeals from case management prothonotaries are taken to a judge of the Trial Division and not to the Court of Appeal.
[14] Before me, counsel for the Defendants urged that Prothonotary Lafrenière's refusal of permission to add Mr. Bassal as a defendant to their Counterclaim amounted to a decision vital to the final issue of the case and further, was clearly wrong in that the Prothonotary had fallen into error of law or so decided based upon a misapprehension of the facts. By contrast, counsel for the Plaintiff urged that the decision under appeal was not vital to a final issue of the case and that Prothonotary Lafrenière's decision that is at issue could not be said to be clearly wrong. Rather, counsel for the Plaintiff urged it was a discretionary decision of a Prothonotary acting in his role as a case manager and should not be disturbed. I adopt the position of counsel for the Plaintiff
2) Whether Mr. Bassal, the sole shareholder and directing mind of the Plaintiff, should be added as an individual defendant to the counterclaim
[15] I am satisfied that the answer to this issue question is a matter of pure discretion and one which is best left to the discretion of a case management judge or prothonotary who invariably will be more familiar with the intricacies and dynamics of any particular action such as this, than would be another or others sitting in appeal from the case management judge's or prothonotary's exercise of discretion. I am satisfied that Prothonotary Lafrenière effectively explained the basis of his exercise of discretion in the portions of his order that are quoted earlier in these reasons. I see no basis on which to interfere.
3) Was Prothonotary Lafrenière's decision that is here under appeal vital to the final issue of the case, was it wrong in law or was it based upon a misapprehension of the facts?
[16] I am satisfied that the answer to each of the three (3) elements of this issue question is, "no". I am satisfied on the material and submissions before me that the Defendants' motivation in seeking to add Mr. Bassal as a defendant to their counterclaim was to better ensure recovery of any damages awarded in their favour, and nothing more.
[17] The final issues of this case are all capable of determination between the Plaintiff and the Defendants without the addition of Mr. Bassal as a defendant to the Defendants' counterclaim. While the Defendants might well have an interest in seeing the same issues determined on their Counterclaim as between themselves and Mr. Bassal, that is not the test. The Defendants chose to seek determination of the issues on their counterclaim solely between themselves and the Plaintiff. They will suffer no prejudice in the final determination of those issues through the absence of Mr. Bassal as a party. If the Defendants are successful on their counterclaim, they seek an injunction in terms that would be binding on Mr. Bassal as an officer, director and directing mind of the Plaintiff. If they are successful in obtaining an award of damages, they will be in a position to enforce that award as against the Plaintiff. That the Plaintiff might not be able to fulfill an award of damages in favour of the Defendants is, first, not a final issue of the case and second is, in any event, pure speculation.
[18] I am satisfied that Prothonotary Lafrenière demonstrated, through the portions of his order quoted earlier in these reasons, a clear understanding of the principles underlying a determination whether or not to grant amendments to a pleading[7]. Against those principles, he chose to grant a range of amendments that could be characterized at this late stage of the proceeding as "housekeeping" amendments. He chose not to grant amendments where he was satisfied, based upon his intimate knowledge of this action, that prejudice and delay might well result and that an award of costs would not constitute adequate compensation for the prejudice and delay. I find no basis to conclude that his decision here under appeal was in any sense inconsistent with the best interests of justice.
CONCLUSION
[19] Based upon the foregoing brief analysis, this appeal by way of motion will be dismissed. An order of costs will go in favour of the Plaintiff, such costs to be payable by the Defendants in any event of the cause.
J.F.C.C.
Ottawa, Ontario
January 24, 2003
[1] Defendants' Motion Record, Tab 6, page 213, paragraph 8 and Tab 3E, pages 83 and 84.
[2] [1993] 2 F.C. 425 (C.A.).
[3] [2002] 2 F.C. 346 (C.A.).
[4] (2001), 283 N.R. 112 (F.C.A.).
[5] See: Microfibres Inc. v. Annabel Canada Inc. (2001), 16 C.P.R. (4th) 12 (F.C.T.D).
[7] See, for example: Canderel Ltd. v. Canada [1994] 1 F.C. 3 at pp. 9-13.
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