Wic Premium Television Ltd. v. Levin, 2001 FCT 1042

Date: 20010919

Docket: T-686-99

                                                              Neutral citation: 2001 FCT 1042

BETWEEN:

WIC PREMIUM TELEVISION LTD.

Plaintiff

- and -

ROY LEVIN a.k.a. ROY LEVINE, JOHN DOE, JANE DOE

and ANY OTHER PERSON OR PERSONS FOUND ON THE

PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES

AT 1830 DUBLIN AVENUE, WINNIPEG, MANITOBA WHO

OPERATE OR WORK FOR BUSINESSES CARRYING ON

BUSINESS UNDER THE NAME AND STYLE OF ‘STARLINK',

‘STARLINK INC.', ‘STARLINK CANADA', ‘STARLINK MANITOBA',

OR ONE OR MORE OF THEM,

ROY LEVIN a.k.a. STAR^*LINK CANADA (1998), STARLINK INC.

3563716 MANITOBA LTD. a.k.a. STAR^*LINK MANITOBA, and

3942121 MANITOBA LTD. a.k.a. STAR*LINK CANADA

SATELLITE SERVICE

Defendants

REASONS FOR ORDER

HENEGHAN J.

[1]                 The Plaintiff, WIC Premium Television Ltd., brings a motion in writing for an order pursuant to the Federal Court Rules, 1998, Rule 120, for an order that the 3942121 Manitoba Ltd. and Starlink Inc. must appoint counsel to represent them in this proceeding. The Plaintiff and Defendants acknowledge that 356316 Manitoba Ltd. has been dissolved and the parties seek, on consent, an Order allowing the Plaintiff to file a Notice of Discontinuance in relation to that party.

[2]                 By order made on June 29^th, 1999, Justice Sharlow granted Mr. Roy Levin leave to represent all of the corporate Defendants. It is appears that that Order was granted on the basis of representations made by Mr. Levin to the Court that he should be granted leave to represent the corporate Defendants. The Plaintiff now argues that current circumstances make it necessary to revisit the question of the representation of the corporate Defendants.

[3]                 The Plaintiff says that there is no evidence concerning the relationship between Mr. Levin and the two remaining corporate Defendants, that is 3942121 Manitoba Ltd. and Starlink Inc. In support of that contention, the Plaintiff points to the lack of documentary evidence, including corporate records filed with the appropriate public Registries, which might show a connection between Mr. Levin and the corporate Defendants.

[4]                 The articles of incorporation for 3942121 Manitoba Ltd. show that that company was incorporated on December 15^th, 1998. Louis Levin and Roy Levin were named as incorporators and first directors. In a cross-examination of Mr. Roy Levin held on September 28^th , 1999, he stated that he was no longer involved with either of the corporate Defendants.

[5]                 Starlink Inc. is an American corporation with its head office in the United States of America. Although Mr. Levin stated in his affidavit of July 10, 2001 that he is an owner and signing officer of this company, no documentation was provided to support this contention. Furthermore, in the cross-examination of Mr. Levin conducted on July 16, 201, no further information was provided concerning his relationship with Starlink Inc.

[6]                 In response, Mr. Levin submits that the current motion by the Plaintiff is a tactic designed to further delay the ultimate resolution of this action. Mr. Levin says that if the issue of his relationship with these corporate Defendants was truly an issue, it should have been raised before now.

[7]                 Mr. Levin filed no affidavit in response to the Plaintiff's motion but made certain allegations of fact in his written submissions, concerning his association with Starlink Canada 1998.

[8]                 In his written submissions, he states as follows:

In my cross-examination of July 16^th, 2001, the copies that were requested were already in the possession of the Plaintiff and I felt no need for further disclosures until such time as I received the documentation, which I have continuously requested. Even the most basic of information as to who will be swearing affidavits for the plaintiff, given the fact that Mr. Haave is no longer involved as an officer and his affidavits would have no bearing on this case. Without these affidavits the Plaintiffs have no further evidence to support continuing in this case.

In my cross-examination on April 20, 2001 (purpose was to examine my affidavit about Mr. Best) I neither confirmed nor denied my association with the Defendants, because I felt they were not relevant in the context of the examination.

In my affidavit of July 6^th, 2001 I stated that I ceased being an owner and director of 3563716 Manitoba Ltd., (aka. Starlink Manitoba) in December 1998. So at the time of this action I was not involved with 3563716 MB LTD. I also believe that that company was dissolved in March 1999 prior to the Anton Pillar Action. I am an owner of Starlink Canada 1998 and the president of that Company.

I am an owner of Starlink Inc. and I am a signing officer for that Company. I am still involved with Starlink Canada Satellite Systems, and I am still and owner of that Company. The Plaintiff has not supplied and evidences to dispute these facts.

[9]                 He concludes his submissions by stating that there is no new evidence adduced by the Plaintiff to support the Plaintiff's current motion pursuant to Rule 120 and that to require the corporate Defendants to appoint counsel would be prejudicial to the Defendants.

[10]            Rule 120 is the relevant Rule and provides as follows:

[11]            As appears from that Rule, a corporation is to be represented by a solicitor unless special circumstances exist to justify a departure from the general rule. This Court considered the issue of "special circumstances", for the purpose of Rule 120, in Kobetek Systems Ltd. v. Canada [1998] 1 C.T.C 308, 98 G.T.C. 6041 (Fed. T.D.). The Court there decided that the factors relevant to a determination of whether special circumstances exist:

1.         Can the corporation afford a lawyer?

2.         Will the proposed representative appear both as advocate and witness?

3.         Are the issues complex?

4.         Can the matter proceed expeditiously?

[12]            Furthermore, in Minister of National Revenue v. 2786885 Canada Inc., [1998] 3 C.T.C 81, 98 D.T.C. 6266 (Fed. Proth.), it was decided that the existence of special circumstances must be proved by affidavit.

[13]            As noted above, no affidavit was filed on behalf of any of the Defendants in response to the Plaintiff's present motion. Written submissions and representations were filed by Mr. Roy Levin. Those written submissions addressed the matters mentioned above. However, nothing was said in those submissions about the financial situation of the two corporate Defendants.

[14]            The issue of impecuniousity was not addressed, directly or indirectly. The issue of whether the proposed representative would appear as both advocate and witness was not specifically addressed, but the written submissions themselves crossed the line between evidence and argument.

[15]            In my opinion, those submissions demonstrate that in the present case, Mr. Levin would indeed act as both witness and advocate, if he is allowed to continue as representative of the corporate Defendants.

[16]            There is no evidence before me which specifically addresses the true nature of the relationship between Mr. Levin and the corporate Defendants. There is merely the bald statement, referred to above, that Mr. Levin is the owner and president of Starlink Canada 1998 and an owner and signing officer of Starlink Inc.

[17]            The present action raises issues of interpretation of the Radiocommunication Act, R.S.C. 1985, c. R-2, as amended and the Copyright Act, R.S.C. 1985, c. C-42, as amended. Serious issues are raised. The written submissions filed by Mr. Levin, on behalf of the corporate Defendants, do not outline the manner in which Mr. Levin proposes to deal with the serious issues raised in this action.

[18]            Having regards to all the circumstances of this case, including the submissions made by the Plaintiff and Mr. Roy Levin, I am not satisfied that the corporate Defendants have shown that "special circumstances" exist that would justify the continued representation of the corporate Defendants by Mr. Levin. It is not appropriate that Mr. Levin continue to appear as the representative of the corporate Defendants now remaining. There is no evidence before me that the corporate Defendants are unable to obtain proper legal representation, on the basis of impecuniosity. The burden is upon the corporate Defendants to establish impecuniosity if that is the reason why they have failed to appoint legal counsel. The corporate Defendants have failed to meet their burden in that regard.

[19]            In all the circumstances, I decline to exercise my discretion in favour of the continued representation of the corporate Defendants by Mr. Roy Levin.

[20]            Since it appears that 3563716 Manitoba Ltd. has been dissolved and the parties agree that a notice of discontinuance of the action against the corporate Defendants be filed, an order to that effect will issue.

[21]            The Plaintiff's motion that the corporate Defendants, 3942121 Manitoba Ltd. and Starlink Inc. be required to appoint counsel, is granted. No representations had been made concerning the time frame within which such legal representation shall be appointed and in my discretion, I order that the present proceedings be stayed for a period of 30 days from the date of my Order to allow for the appointment of legal counsel to represent the corporate Defendants in the continued pursuit of this proceeding.

[22]            There is no order as to costs.

        "E. Heneghan"

                                                                                                      J.F.C.C.                      

Toronto, Ontario

September 19, 2001

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO:                                                        T-686-99

STYLE OF CAUSE:                                            WIC PREMIUM TELEVISION LTD.

Plaintiff

- and -

ROY LEVIN a.k.a. ROY LEVINE, JOHN DOE, JANE DOE and ANY OTHER PERSON OR PERSONS FOUND ON THE PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES AT 1830 DUBLIN AVENUE, WINNIPEG, MANITOBA WHO OPERATE OR WORK FOR BUSINESSES CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF ‘STARLINK', ‘STARLINK INC.', ‘STARLINK CANADA', ‘STARLINK MANITOBA', OR ONE OR MORE OF THEM,

ROY LEVIN a.k.a. STAR^*LINK CANADA (1998), STARLINK INC. 3563716 MANITOBA LTD. a.k.a. STAR^*LINK MANITOBA, and

3942121 MANITOBA LTD. a.k.a. STAR*LINK CANADA SATELLITE SERVICE

Defendants

DATE OF HEARING:                           WEDNESDAY, JULY 25, 2001

PLACE OF HEARING:                                      VANCOUVER, BRITISH COLUMBIA

REASONS FOR ORDER BY:                          HENEGHAN J.           

DATED:                                                                WEDNESDAY, SEPTEMBER 19, 2001

APPEARANCES:                                              Mr. William McKenzie

For the Plaintiff

Mr. Roy Levin

                                                                For the Defendants

                                                                                                                                         Page: 2

SOLICITORS OF RECORD:           Crawford, McKenzie, McLean & Wilford

(Cont'd)                                                   Barristers & Solicitors

Box 520

40 Coldwater Street East

Orillia, Ontario

L3V 6K4

For the Plaintiff

Mr. Roy Levin

Federal Court of Canada

c/o Winnipeg Registry

4^th Floor

363 Broadway Street

Winnipeg, Manitoba

R3C 3N9                                                                    

For the Defendants

FEDERAL COURT OF CANADA

                              Date: 20010919

                                                                                                       Docket: T-686-99

Between:

WIC PREMIUM TELEVISION LTD.

Plaintiff

- and -

ROY LEVIN a.k.a. ROY LEVINE, JOHN DOE, JANE DOE and ANY OTHER PERSON OR PERSONS FOUND ON THE PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES AT 1830 DUBLIN AVENUE, WINNIPEG, MANITOBA WHO OPERATE OR WORK FOR BUSINESSES CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF ‘STARLINK', ‘STARLINK INC.', ‘STARLINK CANADA', ‘STARLINK MANITOBA', OR ONE OR MORE OF THEM,

ROY LEVIN a.k.a. STAR^*LINK CANADA (1998), STARLINK INC. 3563716 MANITOBA LTD. a.k.a. STAR^*LINK MANITOBA, and

3942121 MANITOBA LTD. a.k.a. STAR*LINK CANADA SATELLITE SERVICE

Defendants

REASONS FOR ORDER