Date: 20020902
Docket: T-1874-00
Neutral citation: 2002 FCT 985
Ottawa, Ontario, this 19th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
960122 ONTARIO LTD c.o.b. as BLUE MOUNTAIN GATEWAY
TAVERN, and KATHLEEN JOAN REID
Defendants
REASONS FOR ORDER AND ORDER
1. This is an appeal from the order of Prothonotary Roger Lafrenière dated July 18, 2002, wherein the Prothonotary set September 17, 2002, as the date for the hearing of a reference and ordered that the defendants be served with a copy of the July 18, 2002 order along with any affidavit evidence the plaintiff intended to rely on at the hearing of the reference.
2. On April 2nd, 2001, Madam Justice Heneghan ordered judgment in favour of the plaintiff
and provided at paragraph 8 thereof:
...the Plaintiff will be entitled upon application, which may be made ex parte, to a reference hearing in Toronto which may be held without notice to the Defendants before a referee appointed by the Court on anex parte basis...
- 3. On May 10, 2002, Madam Justice McGillis ordered that the plaintiff was entitled to the reference described in paragraph 8 of the judgment as against the defendant 960122 Ontario Ltd. on an ex parte basis.
- 4. The plaintiff contends that by requiring the plaintiff to give the defendants notice of the Reference, Mr. Lafrenière's order of July 18, 2002 in effect varies the order of Madam Justice McGillis which states that the reference will proceed on an ex parte basis.
5. The plaintiff therefore contends that the Prothonotary erred in law and exceeded his jurisdiction by varying the order of Madam Justice McGillis.
Analysis
6. The plaintiff in this appeal is proceeding under Rules 50 and 51 of the Federal Court Rules, 1998, SOR/98-106. Rule 50 deals with the jurisdiction of the prothonotaries and Rule 51 provides for appeals of prothonotaries' orders to a judge of the Trial Division of the Federal Court.
- 7. By virtue of an order of the Associate Chief Justice dated May 24, 2002, Prothonotary Roger Lafrenière was designated as the referee in this proceeding for the purpose of determining damages, profits, pre-judgment interest and costs as provided for in paragraphs 2, 3, 13 and 14 of the order of Madam Justice Heneghan dated April 2, 2001.
- 8. For the purpose of the reference, Prothonotary Lafrenière was therefore acting as a person designated by the Chief Justice pursuant to Rule 153 of the Federal Court Rules, 1998.
- 9. I am of the view that Rule 51 dealing with appeals of Prothonotaries' orders has no applicability to the within proceeding since we are dealing with the order of a referee.
- 10. If this were an appeal of the findings of a report of Prothonotary Lafrenière acting as referee, then the appeal would be properly brought under Rule 163 which provides that a party may appeal the findings of a report of a referee, who is not a judge, on motion to the division of the Court that ordered the reference, which in this instance is the Trial Division. The order being appealed is not an order of the findings of the referee but rather an order giving direction as to how the reference should be conducted.
11. I am of the view that no appeal lies from such an interlocutory order of a referee. Notwithstanding this finding, and given that the issue was not argued before me, I will proceed to consider the appeal on its merits in the event I am wrong in my determination.
12. Rules 156 and 159 of the Federal Court Rules, 1998, respectively provide for the conduct of a reference and the powers of a referee:
| 156. Unless the Court orders otherwise, a referee shall adopt the simplest, least expensive and most expeditious manner of conducting the reference
...
159. (1) Subject to subsection (2), a referee shall have the same power and authority in matters of practice and procedure as would a judge of the court presiding at the trial of an action.
(2) A referee shall not commit a person to prison or enforce an order for attachment.
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156. Sauf ordonnance contraire de la Cour, l'arbitre adopte la procédure la plus simple, la moins onéreuse et la plus expéditive possible pour le déroulement du renvoi.
...
159. (1) Sous réserve du paragraphe (2), l'arbitre possède les mêmes pouvoirs et la même autorité, en matière de pratique et de procédure, qu'un juge de la cour présidant l'instruction d'une action.
(2) L'arbitre ne peut faire incarcérer une personne ni faire exécuter une ordonnance de contrainte par corps.
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13. It is generally recognized that a referee has broad powers in the conduct of a reference. In Midway Manufacturing Co. v. Bernstein (1988), 23 C.P.R. (3d) 272, Strayer J. (as he then was), stated that:
...once a reference is ordered, it is the referee who has the control of his proceeding except in limited circumstances set out in the rules where a judge can intervene prior to a report being filed.
This broad power is codified in Rule 159(1) which effectively provides for a referee to have the same power and authority in matters of practice and procedure as would a judge presiding at the trial of an action.
- 14. I am of the view that the referee by issuing his July 18, 2002, order did not exceed his authority and was acting within the scope of the Court order that set the reference. The referee's order confers no rights on the defendants, it simply provides for materials to be served on the defendants. By operation of the referee's order, the defendants are not given the right to adduce evidence on the reference, make submissions, or in any way participate in the reference.
- 15. The effect of the referee's order could conceivably trigger and result in an application by the defendants under Rule 399(1)(a) of the Federal Court Rules, 1998. The defendants could seek, by way of motion, a variance of the order which provided for the ex parte reference and an order allowing them to participate in the reference.
- 16. I am also of the view that an ex parte order that has the effect of preventing an adverse party from fully participating in a legal proceeding should be construed narrowly. Audi alteram partem, the principle that both sides must be heard is fundamental to our justice system. The interest of justice is better served when the trier of facts has the benefit of the evidence and arguments of parties adverse in interests. Every effort should be made to advance this principle.
- 17. I find nothing offensive in a referee's order which result in a party defendant seeking an order permitting that party to fully participate in a reference.
- 18. On an ex parte proceeding, the only evidence before the referee is that of the plaintiff. The referee must make factual determinations based on this evidence. In the instant case, there may well be good reasons for the referee to want the defendants served. The Prothonotary noted in a recital to his order that he had read the plaintiff's statement of issues dated May 16, 2001. A review of this statement of issues shows it to be vague and the issues to be far from clearly defined. Any additional information on the issue of damages would clearly be helpful to the referee who would otherwise be left to make a factual determination based only on the plaintiff's evidence which may well be wanting. The defendants are in a unique position, not only will they have to bear the burden of the eventual assessment against them, but they are also in a position to provide some balance to what would otherwise be a one sided proceeding.
- 19. To summarize, I am of the view that the Prothonotary, as referee, committed no reviewable error by ordering that the defendant be personally served with a copy of his order and any affidavit evidence it intended to rely on at the hearing of the reference to support the claim for damages and/or profits. An order entitling the plaintiff to a reference, "which may be made ex parte" is not varied by a referee ordering that the plaintiff's evidence be served on the defendants. Such an Order goes to the conduct of a reference, a matter of practice and procedure within a referee's discretion.
20. For the above reasons the motion will be dismissed.
ORDER
THIS COURT ORDERS THAT:
1. The motion is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1874-00
STYLE OF CAUSE: Society of Composers, Authors and Music Publishers of Canada v.
960122 Ontario Ltd. etc.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 26, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: September 19, 2002
APPEARANCES:
Colleen Stanley FOR PLAINTIFF / APPLICANT
FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Colleen Stanley FOR PLAINTIFF/APPLICANT
Toronto, Ontario M5H 2A4
FOR DEFENDANT/RESPONDENT
Toronto, Ontario M5X 1K6
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