Date: 19990420
Docket: T-2169-98
BETWEEN:
AUDI AKTIENGESELLSCHAFT,
VOLKSWAGEN AKTIENGESELLSCHAFT and
VOLKSWAGEN CANADA INC.
Plaintiffs
- and -
HAYMAN MOTORS LTD.
Defendant
REASONS FOR JUDGMENT
LAFRENIÈRE P.:
[1] The plaintiffs brought a motion for default judgment against the defendant, Hayman Motors Ltd., pursuant to rule 210 of the Federal Court Rules, 1998, SOR/98-106. The motion was heard in Toronto on April 19, 1999. At the conclusion of the hearing, the plaintiffs' motion was granted. The following are the reasons for that order.
[2] The plaintiffs commenced this action by way of statement of claim, filed on November 20, 1998, alleging, inter alia, infringement of certain trade-marks which they own relating to the words AUDI, VOLKSWAGEN and VW.
[3] On November 23, 1998, the plaintiffs served the defendant with the statement of claim by leaving a copy with the receptionist who was, according to the affidavit of service, a person who appeared to be in care and control of the place of business. I am satisfied, based on the affidavit of service, that the corporate defendant was properly served with the Statement of Claim in compliance with Rule 130(1)(c).
[4] On January 22, 1999, the plaintiff, after confirming with the Court Registry that the defendant had not yet filed a statement of defence, brought a motion for default judgment returnable on February 22, 1999. The defendant was served with the plaintiffs" motion record that same day.
[5] On February 22, 1999, counsel for the plaintiffs and Mr. Michael Hayman, president of the corporate defendant, appeared on the motion. Mr. Hayman advised the Court that he intended to retain a lawyer on behalf of the corporate defendant and requested time to do so. After hearing submissions from the parties, the motions court judge adjourned the proceedings sine die.
[6] In their materials filed in support of this motion, the plaintiffs refer to a letter sent by its" lawyers to the defendant on March 10, 1999. This letter was not attached as an exhibit to the affidavit in support of the motion as same included privileged settlement communications. The letter, extracts of which were read to me by plaintiffs" counsel, noted that to date there had been no communication from the defendant or its lawyer and advised that if a response was not received by March 20, 1999, the motion for default judgment would proceed. This correspondence failed to elicit any response from the defendant. When questioned whether he had received the letter, Mr. Hayman advised that he did not recall. I am satisfied however, based on representations from Plaintiffs" counsel, that a letter was in fact sent and received by the corporate defendant.
[7] The plaintiffs renewed its motion for default judgment returnable on April 19, 1999 and served the defendant with its motion record on March 30, 1999.
[8] Mr. Hayman appeared on behalf of the corporate defendant and once again sought an adjournment for the purpose of retaining counsel. He stated that after the motion was adjourned by the motions court judge, he consulted two lawyers specializing in trademark law and was seeking a third opinion. He advised that it was his desire to settle the action but that it had not been clearly established to him how the Plaintiffs" trademarks had been infringed.
[9] Rule 210 of the Federal Court Rules, 1998 provides for default judgment. Where a defendant fails to serve and file a statement of defence within the time limits prescribed by rule 204, the plaintiff may move for default judgement. The rule reads as follows:
| 210. (1) Where a defendant fails to serve and file a statement of defence within the time set out in rule 204 or any other time fixed by an order of the Court, the plaintiff may bring a motion for judgment against the defendant on the statement of claim.
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210. (1) Lorsqu'un défendeur ne signifie ni ne dépose sa défense dans le délai prévu à la règle 204 ou dans tout autre délai fixé par ordonnance de la Cour, le demandeur peut, par voie de requête, demander un jugement contre le défendeur à l'égard de sa déclaration.
|
| ...
(3) A motion under subsection (1) shall be supported by affidavit evidence.
|
...
(3) La preuve fournie à l'appui de la requête visée au paragraphe (1) est établie par affidavit.
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| (4) On a motion under subsection (1), the Court may
(a) grant judgment;
(b) dismiss the action; or
(c) order that the action proceed to trial and that the plaintiff prove its case in such a manner as the Court may direct.
|
(4) Sur réception de la requête visée au paragraphe (1), la Cour peut:
(a) accorder le jugement demandé;
(b) rejeter l'action;
(c) ordonner que l'action soit instruite et que le demandeur prés preuve comme elle l'indique.
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[10] Rule 204 requires that a defence be filed within 30 days after service of the statement of claim, if the defendant is served within Canada. The time for filing a defence in the present case has long expired.
[11] Under the rules of this Court, default judgment is never automatic, but rather a matter in the realm of the Court's discretion. In this case, the defendant Hayman Motors Ltd. has failed to establish any reasonable explanation for its failure to file a Statement of Defence, notwithstanding the opportunity afforded by the motions court judge. This is an appropriate situation for default judgment to be granted, and accordingly, this Court exercises its discretion in favour of the plaintiffs, and their motion for default judgment pursuant to rule 210 is granted with costs on a solicitor and client basis.
"R. Lafrenière"
Prothonotary
Toronto, Ontario
April 20, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2169-98
| STYLE OF CAUSE: AUDI AKTIENGESELLSCHAFT, VOLKSWAGEN AKTIENGESELLSCHAFT and VOLKSWAGEN CANADA INC. |
Plaintiffs
- and -
Defendant
DATE OF HEARING: MONDAY, APRIL 19, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: LAFRENIÈRE P.
DATED: TUESDAY, APRIL 20, 1999
APPEARANCES: Mr. Trent Horne
For the Plaintiffs
Mr. Michael Hayman
The Defendant on his own behalf
SOLICITORS OF RECORD: Sim, Hughes, Ashton & McKay
For the Plaintiffs
The Defendant on his own behalf
FEDERAL COURT OF CANADA
Date: 19990420
Docket: T-2169-98
Between:
| AUDI AKTIENGESELLSCHAFT, VOLKSWAGEN AKTIENGESELLSCHAFT and VOLKSWAGEN CANADA INC. |
Plaintiffs
- and -
Defendant
REASONS FOR JUDGMENT
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