Educational Testing Service v. Maple Leaf International Consulting Inc., 2004 FC 111

Date: 20040126

Docket:T-550-01

Citation: 2004 FC 111

Ottawa, Ontario, this 26^th day of January, 2004

Present:                       The Honourable Mr. Justice Mosley                        

BETWEEN:

                                                EDUCATIONAL TESTING SERVICE

                                                                                                                                                          Plaintiff

                                                                                 and

                                MAPLE LEAF INTERNATIONAL CONSULTING, INC.

AND SUNDARAM "SONNY" PITCHUMANI

Defendants

REASONS FOR ORDER AND ORDER

[1]                 The defendant, Sundaram Pitchumani, has brought two motions in writing, each appealing an order of a prothonotary. The first motion, filed with the Court on November 14, 2003 seeks to appeal an Order of Prothonotary Milczynski, dated November 4, 2003, which granted the plaintiff, Educational Testing Service ("ETS"), an extension of time to serve and file its reply representations to the defendant's response to the plaintiff's previous motion pursuant to Rule 97 of the Federal Court Rules, 1998, SOR/98-106 (provisions described in the attached Annex).

[2]                 The second motion, filed with the Court on December 1, 2003, seeks to appeal an Order of Prothonotary Lafrenière dated November 21, 2003 and requests the following relief:

1.              Appealing and seeking the annulment of Prothonotary's order of November 21, 2003 pursuant to Rule 51 of the Federal Court.

2.              An order seeking a finding of perjury (willful intent to mislead the court through perjured statements) committed by Mr. Rohit Parekh in his affidavit sworn October 1, 2003 in support of Rule 97 motion of the Plaintiff, and a finding of misconduct under Rule 404 on the part of the attorneys for the plaintiff...

3.              Costs of this motion payable to the defendant under Rule 401(1), and reparations payable to the defendant in the amount of $100,000 under Rule 404 by the Plaintiff's attorneys...

[3]                 This matter concerns an action brought against Mr. Pitchumani and the corporate defendant, Maple Leaf International Consulting, Inc. ("Maple Leaf"), in March 2001 alleging infringement and depreciation of the goodwill attaching to the trademarks of the plaintiff, ETS. The action against Maple Leaf was largely concluded by the Order of Mr. Justice Lemieux dated May 15^th, 2001 which, inter alia, gave default judgment against the corporation upon conditions being satisfied. That occurring, default judgment was entered by Mr. Justice O'Keefe on February 5^th, 2003 against Maple Leaf. Mr. Pitchumani continued to defend the action against himself as an unrepresented litigant.

[4]                 In August of 2001, Mr. Pitchumani filed a motion for summary judgment in respect of the plaintiff's claim. His affidavit, sworn August 23^rd, 2001, was filed in support of that motion.

[5]                 Early in 2003, following a status review of the action, the plaintiff took steps to cross-examine Mr. Pitchumani on his August 2001 affidavit and two subsequent affidavits that were submitted in support of his motion, sworn on March 27, 2003 and April 30, 2003 respectively. The Plaintiff served and filed its own motion for summary judgment against Mr. Pitchumani on March 14, 2003 together with a Direction to attend for cross-examination. There followed what appears to have been a concerted effort by Mr. Pitchumani to resist cross-examination on these affidavits, notwithstanding repeated directions from the Court to make himself available for those purposes.

[6]                 On October 1, 2003, the plaintiff brought a motion pursuant to Rules 97 and 369 of the Federal Court Rules, 1998, for an order striking, or, in the alternative dismissing, the defendant's summary judgment motion and striking his evidence filed in support, together with costs for the motion and for those costs"thrown away" by the defendant's failure to attend the cross-examinations.

[7]                 On November 4, 2003, Prothonotary Milczynski issued an order granting ETS an extension of time to file its reply record, as part of its motion pursuant to Rule 97. This Order was made pursuant to Rule 369, on the basis of written submissions, and stated that upon reading the motion record and written representations of both ETS and Mr. Pitchumani, that the time provided in Rules 203(2) and 369(3) was to be extended by two days from the date of the Order.

[8]                 On November 21^st, 2003, Prothonotary Roger Lafrenière, the case management prothonotary in this action, issued an Order dismissing the defendant's summary judgment motion, the affidavit evidence submitted in support of that motion by the defendant and the affidavit filed in support of the defendant's response to the plaintiff's summary judgment motion and awarded costs to the plaintiff, both for the motion and for the costs thrown away for the defendant's failure to attend for cross-examination. Additionally, the defendant was prohibited from taking any further steps in these proceedings except an appeal from the prothonotary's Order, pending payment of all outstanding costs owed to the plaintiff. Included in the outstanding costs was an award of $750 ordered payable forthwith by Associate Senior Prothonotary Giles on September 10, 2001 "before any further step is taken save for an appeal" of his order. Over two years later, that order remained unsatisfied.

[9]                 Prothonotary Lafrenière's Order of November 21, 2003 describes Mr. Pitchumani's conduct in the proceedings as being "obstructive, reprehensible and outrageous" and thus deserving of sanction by the Court. Further, the Order stated that Mr. Pichumani had "demonstrated disdain and a complete disregard for the Orders of this Court". I would agree with those conclusions based on a reading of the record and in particular the materials submitted by Mr. Pitchumani in support of his summary judgment motion. They are replete with scurrilous allegations against plaintiff's counsel and the case management prothonotary and reveal a near contemptuous attitude toward the Court and its procedures.

[10]            The materials submitted to the Court in support of both appeals are in a similar vein and, for the most part, are not worthy of consideration in so far as they consist of ad hominen attacks and baseless allegations.

[11]            The Federal Court of Appeal has recently addressed the standard of review to be applied upon appeal of a decision of a prothonotary. In Merck & Co. v. Apotex Inc., 2003 FCA 488, Décary J.A., clarified the standard of review set out in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), at paragraph 19, as follows:

... I think it is appropriate to slightly reformulate the test for the standard of review. I will use the occasion to reverse the sequence of the propositions as originally set out, for the practical reason that a judge should logically determine first whether the questions are vital to the final issue: it is only when they are not that the judge effectively needs to engage in the process of determining whether the orders are clearly wrong. The test would now read:

Discretionary orders of prothonotaries ought not be disturbed on appeal to a judge unless:

(a) the questions raised in the motion are vital to the final issue of the case, or

(b) the orders 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.

[12]            In relation to the first motion, an appeal of the November 4, 2003 Order of Prothonotary Milczynski, the defendant contends that the prothonotary erred in not providing reasons for her Order. In my view, the defendant has not demonstrated that this Order is "clearly wrong", in that the prothonotary based the exercise of her discretion on a wrong principle of law or upon a misapprehension of the facts. There is no requirement that a prothonotary provide reasons for an order, and an order without reasons will not automatically afford grounds for intervention: see Anchor Brewing Co. v. Sleeman Brewing & Malting Co. (2001), 15 C.P.R. (4^th) 63 (F.C.T.D.). There is no indication that the prothonotary based her order to grant an extension of time to the plaintiffs on any erroneous principle or misapprehension of the facts. The defendant's submissions on this appeal simply reiterate his hyperbolic allegations against the plaintiff in relation to the Rule 97 motion, which, at the time of Prothonotary Milczynski's Order, continued to be outstanding before the Court.

[13]            Moving now to the second motion of the defendant, where he seeks appeal of Prothonotary Lafrenière's November 21, 2003 Order, the sole issue that warrants consideration in this appeal, is whether the prothonotary exceeded his jurisdiction under Rule 50 of the Federal Court Rules, 1998, in "dismissing" the defendant's summary judgment motion. In my opinion, having regard to the dicta set out in Merck & Co, supra, in relation to whether questions raised in an appeal of a prothonotary's order are "vital" to a final issue, I find that the question related to Rule 50 does not raise a question that is vital to the final issue of the case. Therefore, the standard of review that must be applied is whether the Order is "clearly wrong", in that it was based on a wrong legal principle or based on a misapprehension of the facts.

[14]            The relevant provisions of Rule 50 provides as follows:

[15]            The applicant/defendant contends that the prothonotary's Order of November 21, 2003 must be set aside on the ground that a prothonotary does not have the "power" to hear or make a ruling in respect of a summary judgment motion. The respondent/plaintiff argues in reply that Rule 50 (1)(c) concerns the hearing of a summary judgment motion and that no argument having been heard in regard to that motion, the prothonotary made an appropriate order to strike the motion and the several affidavits under Rule 97. Rule 97 provides for the dismissal of proceedings or judgment by default, as the case may be, for failure to attend an oral examination or other misconduct.

[16]            A prothonotary clearly has jurisdiction to issue orders pursuant to Rule 97. The October 1, 2003 motion of the plaintiff was brought under this Rule, due to the defendant's alleged failure to attend at cross-examination and other misconduct. The prothonotary analysed the evidence and written argument before him and "dismissed" the proceeding under his broad power pursuant to Rule 97 (d). He also struck the defendant's affidavits, pursuant to Rule 97 (c). Both these orders were within his jurisdiction.

[17]            There is no basis for finding that the Order of the prothontary, dated November 21, 2003 is "clearly wrong". I agree with the plaintiff's position that Rule 50(1)(c) is directed at limiting a prothonotary's jurisdiction "to hear" and then make "any necessary orders" related thereto, certain categories of summary judgement motions, on their merits. Such a situation did not arise in this case. The language used in the November 21, 2003 Order, "dismissing" the defendant's summary judgment motion, refers to the dismissal of the proceeding for misconduct, pursuant to Rule 97(d), and not pursuant to Rules 213-219, which govern summary judgment motions.

[18]            In its response to the defendant's appeal, the plaintiff seeks an order striking the defendant's affidavit, sworn November 28, 2003 and filed on his motion to appeal the prothonotary's November 21, 2003 Order, on the basis that the applicant must have leave of the Court to file such evidence on appeal, as no new evidence may be submitted on an appeal of a prothonotary's decision. In this regard, I refer to James River Corp. of Virginia v. Hallmark Cards Inc. (1997), 126 F.T.R. 1. The plaintiff requests that pursuant to Rule 74, the Court order that this document be removed from the Court file, as being improperly filed. While I agree with the plaintiff 's submission that the affidavit is improper, in that fresh affidavit evidence is generally not considered on Rule 51 motions, I decline to exercise my discretion to order its removal as the affidavit, on the whole, merely repeats the baseless accusations made by Mr. Pitchumani in the material he filed before Prothonotary Lafrenière, dated October 8, 2003 and November 5, 2003, and as such does not contain new evidence.

[19]       Costs in these appeals shall be payable by the individual defendant in favour of the plaintiff, payable to the plaintiff in any event of the cause.

ORDERS

THIS COURT ORDERS that:

1.         The defendant's motion, filed November 14, 2003, appealing Prothonotary Milczynski's November 4, 2003 Order is dismissed;

2.          The defendant's motion, filed December 1, 2003, appealing Prothonotary Lafrenière's November 21, 2003 Order is dismissed;

3.          Costs for each motion, brought by the defendant and filed on November 18, 2003 and December 1, 2003 respectively, shall be payable by the individual defendant to plaintiff, in any event of the cause.

                                                       "Richard G. Mosley"            

                                                                                 J.F.C.                    

                                       Annex

                          FEDERAL COURT

                   SOLICITORS OF RECORD

DOCKET:      T-550-01

STYLE OF CAUSE:                           EDUCATIONAL TESTING SERVICE v.MAPLE LEAF INTERNATIONAL CONSULTING, INC. AND SUNDARAM "SONNY" PITCHUMANI

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER

AND ORDER BY:                              The Honourable Mr. Justice Mosley

DATED:         January 26, 2004           

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: