Date: 20050223
Docket: T-688-02
Citation: 2005 FC 281
BETWEEN:
CRÉATIONS MAGIQUES (CM) INC.
Plaintiff/
Defendant by counterclaim
and
MADISPRO INC.
Defendant/
Plaintiff by counterclaim
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] In this case the Court has before it a motion by the defendant to dismiss the plaintiff's action pursuant to Rule 167 of the Federal Courts Rules (the Rules) on the ground that the schedule imposed by this Court in March 2004 has not been observed by the plaintiff, and consequently there was an unjustified delay in the prosecution of the plaintiff's action.
Background
[2] On April 29, 2002, the plaintiff initiated an action against the defendant for the infringement of patent 2,088,098 for an invention titled [TRANSLATION] "thermotherapeutic cushion".
[3] The pleadings were closed on or about July 11, 2002. From that date until May 28, 2003, that is for a period of over ten months, it appears the plaintiff did nothing specific to move its action forward. Following a status review notice, the Court authorized the plaintiff's action to go forward and imposed a schedule by order dated August 25, 2003.
[4] That order provided that the parties should do what was necessary in the context of proceeding with an application for judicial review. However, as this was not the appropriate approach, the Court realized this and on January 21, 2004, required the parties to submit a schedule suitable for proceeding with an action. In the interim, however, the plaintiff had filed its affidavit required in principle under rule 306.
[5] The new schedule sought by the Court was submitted by consent, and on March 19, 2004, the Court issued an order containing the following schedule:
. . .
3) The parties shall adhere to the following deadlines:
a) The service and filing by the Plaintiff of its Reply to the Defendant's Amended Statement of Defence and a Statement of Defence to its Amended Counterclaim by April 9, 2004.
b) The service by both parties of their Rule 223 Affidavit of Documents by April 30, 2004.
c) Examinations for discoveries of both parties to be completed by June 30, 2004.
d) Replies to all undertakings and questions taken under advisement arising out of the examinations for discovery of the parties to be furnished by August 16, 2004.
e) All motions for the adjudication of objections arising out of the examinations for discovery of the parties to be served and filed by September 15, 2004.
f) Any further examinations for discovery to be completed by October 15, 2004.
4) The whole with costs in the cause.
[6] Some time after the end of this schedule, i.e. on December 6, 2004, the Court found that this schedule had been observed and then issued an order requiring the parties to submit a schedule for the next stages. That order read:
[TRANSLATION]
As the schedule contained in the order dated March 19, 2004, must now be taken as completed, counsel for each party shall within 20 days of the date of this order submit to the Court - jointly insofar as possible - a schedule indicating the further measures to be taken in the instant case. Any schedule proposed by the parties shall be limited to the essential measures still remaining to be taken.
[7] In a letter to the Court dated December 23, 2004, a copy of which was sent to the plaintiff's counsel, the defendant's counsel objected vigorously to the new schedule submitted by the plaintiff, pointing out that the schedule set out in the order of March 19, 2004, had not been respected by the plaintiff.
[8] Consequently, he asked the Court to dismiss the plaintiff's action.
[9] By an order dated January 10, 2005, the Court acknowledged that clearly it could not approve the schedule submitted by the plaintiff, and invited the defendant to proceed by motion if it wished to have the plaintiff's action dismissed. That order of January 10, 2005 reads:
[TRANSLATION]
In view of the content of the letter from the defendant and plaintiff by counterclaim (the defendant) dated December 23, 2004, the Court clearly cannot acquiesce in the stages which the plaintiff and defendant by counter-claim (the plaintiff) seeks to arrange through the draft order submitted by the latter on December 23, 2004.
The Court also cannot simply by letter consider the remedy sought by the defendant through its letter dated December 23, 2004. If the defendant wishes to have the plaintiff's action dismissed, it will have to proceed by motion in the proper form under Rule 167 of the Federal Courts Rules.
If the defendant decides to go ahead, such a motion shall be served and filed within 30 days of this order.
[10] Hence this motion by the defendant, in which by the affidavit filed in support the defendant tells the Court that, apart from the stage mentioned in point 3(a) of the order of March 19, 2004, the plaintiff has taken no other relevant action. Significantly, the plaintiff had not served its affidavit of documents under Rule 223 on April 30, 2004, although the defendant had complied with that deadline.
[11] In fact, at the date the motion at bar was heard, the plaintiff had still not served its affidavit of documents.
[12] In its affidavit in reply to the motion at bar, the plaintiff essentially argued that the preparation of this affidavit was a considerable undertaking for it and that from December 2003 to summer 2004, it had to concentrate on dealing with various legal problems in addition to pursuing the action at bar.
Analysis
[13] The defendant clearly based its motion on the fact that the terms of the Court's order dated March 19, 2004, had not been observed (the failure by the plaintiff to file its affidavit of documents) and that non-observance led to an unjustified delay.
[14] Accordingly, it can be validly argued that the defendant's motion is based on rule 167 as well as on paragraph 382(1)(a) and rule 385, or even this Court's judgment in Ferrostaal Metals Ltd. v. Evdomon Corp. (2000), 181 F.T.R. 265 (affirmed at trial by a judgment of June 21, 2000, and in the Federal Court of Appeal by a judgment of October 11, 2001, citation 2001 FCA 297).
[15] In the latter case, the following principles were laid down with regard to a schedule that has not been observed:
[14] The Court might have expected that this schedule would be observed, since it was taking this action in a case that was already in breach of the rules (there had had to be a notice of status review issued in the case) and which the Court was allowing to continue. Any schedule imposed by the Court certainly should have been taken seriously at that point. This is particularly true for any plaintiff since ultimately it is the plaintiff's action that is at stake, and primary responsibility for ensuring that the case moves forward lies with the plaintiff. This is a matter of the credibility of and respect for the orders of this Court.
. . . . .
[20] In my opinion, any unjustified non-compliance with an Order of the Court establishing a schedule is a serious matter in itself. When that Order was made pursuant to a status review, any unjustified default is even more serious, and the degree of tolerance shown by the Court will be correspondingly lower. After all, the Court is then dealing with a case that is delinquent for the second time. It seems to me that the test that then applies should be even simpler than what we find in France-Canada Éditions et Publications Inc. et al v. 2845-3728 Québec Inc., unreported decision dated March 9, 1999, docket no. T-2278-92, and Baroud v. Canada, [1998] F.C.J. No. 1729. In my view, the sound administration of justice justifies saying that a finding of unjustified default is then sufficient in itself for a plaintiff's action to be struck for delay.
[21] Of course, striking an action will definitely prejudice a plaintiff to some extent. However, in terms of a status review, an assessment of the prejudice to a party is not part of the equation that is applied (see Multibond Inc. v. Duracoat Powder Manufacturing Inc., unreported decision dated October 4, 1999, docket no. T-1703-94). This seems to me to be particularly true when, as here, we have a situation that arose after the notice of status review. If any prejudice should be taken into consideration at this point, it is the prejudice to the Court and those of its users who comply with the rules and orders. As my colleague Hargrave wrote in Trusthouse Forte California Inc. et al. v. Gateway Soap & Chemical Co. (1998), 161 F.T.R. 88, at page 89:
These reasons touch on the need for litigants to recognize that they must not delay proceedings unreasonably so as to tie up the court's resources needlessly. If a plaintiff should do so he or she stands to have the action dismissed. For the court to do otherwise results in stale proceedings which not only bring the court and its case management process into disrespect, but also affects and indeed may prejudice other litigants who wish to have their litigation resolved expeditiously.
. . . . .
[24] A party who has an Order from the Court, and particularly a plaintiff, cannot allow the various steps set out in that Order to expire without attempting, in a timely manner, to obtain a variation of the Order by motion.
[Emphasis added.]
[16] In my opinion, in this case the plaintiff's continued lateness in filing its affidavit of documents constitutes an unjustified breach and delay.
[17] The evidence in the record which the Court may consider indicates that the plaintiff agreed by consent to the schedule that the Court approved in its order of March 19, 2004. If the plaintiff had been confronting significant distractions since December 2003, it should not have agreed to the schedule of March 2004.
[18] In this connection, the Court should add that it is definitely not persuaded that the difficulties experienced by the plaintiff prevented it from respecting the date of April 30, 2004, for the filing of its affidavit.
[19] The plaintiff further appeared to suggest in its reply record that its affidavit of documents would ultimately be quite straightforward and that the affidavit it filed in October 2003 under rule 306 could serve as a rule 223 affidavit of documents. That cannot stand. The order of March 19, 2004, required an affidavit under Rule 223 - which is completely different from an affidavit under Rule 306. Further, if the documents already collected by the plaintiff in October 2003 were sufficient to meet the requirements of Rule 223, it would have been easy for the plaintiff to file its affidavit of documents in late April 2004.
[20] In view of the foregoing reasons, and although the Court dislikes drawing such a conclusion, it must in the circumstances allow the defendant's motion with costs and dismiss the plaintiff's action for unjustified delay. In view of the stage reached, and bearing in mind what has gone before, it cannot be argued that the Court is now giving procedure precedence over law.
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"Richard Morneau"
Prothonotary
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Montréal, Quebec
February 23, 2005
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-688-02
STYLE OF CAUSE: CRÉATIONS MAGIQUES (CM) INC.
Plaintiff/
Defendant by counterclaim
and
MADISPRO INC.
Defendant/
Plaintiff by counterclaim
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 14, 2005
REASONS FOR ORDER BY: Richard Morneau, Prothonotary
DATED: February 23, 2005
APPEARANCES:
Daniel M. Kochenburger FOR THE PLAINTIFF/
DEFENDANT BY COUNTERCLAIM
Richard Uditsky FOR THE DEFENDANT/
PLAINTIFF BY COUNTERCLAIM
SOLICITORS OF RECORD:
Daniel M. Kochenburger FOR THE PLAINTIFF/
Montréal, Quebec DEFENDANT BY COUNTERCLAIM
Mendelsohn FOR THE DEFENDANT/
Montréal, Quebec PLAINTIFF BY COUNTERCLAIM
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