Date: 19990309
Docket: T-2278-92
MONTRÉAL, QUEBEC, MARCH 9, 1999
BEFORE: RICHARD MORNEAU, PROTHONOTARY
Between:
FRANCE-CANADA ÉDITIONS ET PUBLICATIONS INC.
FRANCE ÉDITIONS ET PUBLICATIONS S.A.
and
LES PUBLICATIONS TÉLÉMÉDIA-HACHETTE INC.,
Plaintiffs,
AND
2845-3728 QUÉBEC INC., doing business
under the trade name "STYLE ELLE",
Defendant.
ORDER
The plaintiffs' action is dismissed for delay pursuant to Rule 382(2)(a).
Richard Morneau
Prothonotary
Certified true translation
Bernard Olivier, LL. B.
Date: 19990309
Docket: T-2278-92
Between:
FRANCE-CANADA ÉDITIONS ET PUBLICATIONS INC.
FRANCE ÉDITIONS ET PUBLICATIONS S.A.
and
LES PUBLICATIONS TÉLÉMÉDIA-HACHETTE INC.,
Plaintiffs,
AND
2845-3728 QUÉBEC INC., doing business
under the trade name "STYLE ELLE",
Defendant.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] On June 18, 1998 the plaintiffs received from this Court a notice of status review ("the notice"). By that notice the plaintiffs were required to show cause why their action should not be dismissed for delay, pursuant to Rules 381 and 382(2)(a) of the Federal Court Rules (1998) ("the Rules").
[2] The filing of the statement of claim in the case at bar goes back to September 15, 1992. The notice was therefore issued since, under Rule 380(1)(a)(ii):
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380. (1) Subject to subsection (3), where |
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(i) 180 days have elapsed since the issuance of the statement of claim and pleadings are not closed, or |
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(ii) 360 days have elapsed since the issuance of the statement of claim and no party has filed a requisition for a pre-trial conference under rule 258, or |
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(b) in an application or appeal, 180 days have elapsed since the issuance of the notice of application or appeal and no requisition for a hearing date has been filed, |
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the Court shall fix a time and date for a status review. |
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[3] In their reply to the notice the plaintiffs only indicated that as regards future stages in the matter they had arrived at the stage of filing their affidavit of documents.
[4] The plaintiffs offered no deadline for the said filing. They also did not discuss any other steps that remained to be taken in order to bring their action to the stage of Rule 258, namely the requisition for a pre-trial conference.
[5] So far as the past was concerned, that is the delay of over five years which had elapsed since the filing of the statement of claim, the plaintiffs' written submissions remained short and as vague as possible. The plaintiffs indicated that their case had changed hands among their counsel. They further indicated in the course of a vague and imprecise allegation that certain documents relevant to the matter were not available.
[6] They further argued, again in a general and imprecise manner, that they had to proceed with several cases and negotiations dealing with the marks at issue and that the fate of the action at bar was tied to that of another case which was still pending.
[7] However, as mentioned by the defendant in its reply to the plaintiffs' arguments, a reply authorized by an order of this Court dated January 29, 1999, this allegation of several cases:
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. . . in any case did not prevent the plaintiffs from filing their affidavit of documents which they then had in their possession in 1993, without prejudice to their right to subsequently disclose any other new document originated or prepared after the date of their first affidavit of documents, to the extent that such documents subsequently originated or prepared are relevant to this case . . . |
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[8] Finally, the fact that the plaintiffs' Canadian counsel received their instructions from their opposite numbers in France is not a valid reason to explain the undue delay in the case at bar.
[9] In the course of a reply to the defendant's reply, the plaintiffs indicated on February 26, 1999 that since their initial response to the notice (in July 1998), a number of later decisions by this Court had put forward certain parameters which should lead the Court to allow the plaintiffs' action to proceed.
[10] In this connection the plaintiffs referred to two decisions of November 9, 1998 in which my brother Giles essentially indicated that in a situation like this where the majority of the delay was incurred before the Rules came into effect (on April 25, 1998), the Court should allow a case to proceed provided the plaintiff gives reasons or justifications for the delay, and for the future the same party indicates its intention to proceed with the matter (see Scepter Manufacturing Co. v. Norseman Plastics Ltd., [1998] F.C.J. No. 1653 (Giles A.S.P.) in paragraph 1 and Richter Gedeon Vegyészeti Gyar RT v. Apotex Inc., [1998] F.C.J. No. 1651 (Giles A.S.P.) in paragraphs 5 and 6).
[11] At the same time, and so concurrently with the precedents cited by the plaintiffs, Hugessen J.A. of this Court had to rule on the approach to be used in considering a notice of status review. In paragraph 4 of his decision in Baroud v. Canada, [1998] F.C.J. No. 1729, Hugessen J.A. developed a test which clarifies and moves in the same direction as that developed by my brother Giles. The judge said the following:
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In deciding in what manner to exercise the wide discretion granted to it by Rule 382 at the conclusion of a status review, it seems to me that the Court needs to be concerned primarily with two questions: |
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1) what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred?; and |
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2) what steps is the plaintiff now proposing to move the matter forward? |
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The two questions are clearly inter-related in that if there is a good excuse for the case not having progressed more quickly, the Court is not likely to be very exigent in requiring an action plan from the plaintiff. On the other hand, if no good reason is advanced to justify the delay, the plaintiff should be prepared to demonstrate that he recognizes that he has a responsibility to the Court to move his action along. Mere declarations of good intent and of the desire to proceed are clearly not enough. Likewise, the fact that the defendant may have been lax and may not have fulfilled all his procedural obligations is largely irrelevant: primary responsibility for the carriage of a case normally rests with a plaintiff and at a status review the Court will look to him for explanations. |
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[12] If either of these tests is applied to the facts before the Court, I have to conclude that the vague and general explanations given by the plaintiffs to explain their delay in the case at bar are worse than unsatisfactory and so provide no justification for the delay that resulted. Furthermore, the plaintiffs do not show that they are really prepared to proceed with their case when they state that they have arrived at the stage of affidavits of documents, without offering any deadline for doing this.
[13] Accordingly, whether in accordance with the test developed by my brother Giles or using the test put forward by Hugessen J.A., I come to the conclusion that the plaintiffs have not persuaded me that the case at bar should proceed. Since my brother Giles' test was known to the plaintiffs when they filed their reply to the defendant's reply and this test is essentially equivalent to that of Hugessen J.A., in my opinion it would serve no purpose to allow the plaintiffs to comment on Hugessen J.A.'s judgment.
[14] The plaintiffs' action will therefore be dismissed for delay, pursuant to Rule 382(2)(a).
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
March 9, 1999
Certified true translation
Bernard Olivier, LL. B.
Federal Court of Canada
Trial Division
Date: 19990309
Docket: T-2278-92
Between:
FRANCE-CANADA ÉDITIONS ET PUBLICATIONS INC.
FRANCE ÉDITIONS ET PUBLICATIONS S.A.
and
LES PUBLICATIONS TÉLÉMÉDIA-HACHETTE INC.,
Plaintiffs,
AND
2845-3728 QUÉBEC INC., doing business
under the trade name "STYLE ELLE",
Defendant.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-2278-92
STYLE OF CAUSE: FRANCE-CANADA ÉDITIONS ET
PUBLICATIONS INC.
FRANCE ÉDITIONS ET PUBLICATIONS, S.A.
and
LES PUBLICATIONS TÉLÉMÉDIA-
HACHETTE INC.,
Plaintiffs,
AND
2845-3728 QUÉBEC INC., doing business
under the trade name "STYLE ELLE",
Defendant.
STATUS REVIEW CONDUCTED AT MONTRÉAL WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: March 9, 1999
WRITTEN SUBMISSIONS BY:
Daniel S. Drapeau for the plaintiffs
Yves Paquette for the defendant
SOLICITORS OF RECORD:
Ogilvy Renault for the plaintiffs
Daniel S. Drapeau
Montréal, Quebec
Alepin Gauthier for the defendant
Yves Paquette
Laval, Quebec
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