Date:
20090323
Docket:
T-527-07
Citation:
2009 FC 308
[ENGLISH TRANSLATION]
Montréal, Quebec, March 23, 2009
PRESENT:
Richard Morneau, Esq., Prothonotary
BETWEEN:
THE SPORTS NETWORK
INC.
and
LE
RÉSEAU DES SPORTS (RDS) INC.
Plaintiffs
and
JEAN GAGNÉ
and
9168-9141
QUÉBEC INC.
Defendants
REASONS
FOR ORDER AND ORDER
[1]
UPON
motion by the plaintiffs to obtain an order authorizing, among other things,
the amendment of the statement of claim, ordering the defendants to respond to
questions and amending the schedule for the next steps to be taken in this
case;
[2]
WHEREAS
amendment of the statement of claim is the central element in any other remedy
the parties are seeking in this motion, and it is therefore appropriate to
address this first;
[3]
WHEREAS
with respect to the principles that apply to the amendment of pleadings, the
following passage from Canderel Ltd. v. Canada, [1994] 1 FC 3 (C.A.), at
page 10, clearly reflects the latitude that the Court must demonstrate in this
matter:
.
. . while it is impossible to enumerate all the factors that a judge must take
into consideration in determining whether it is just, in a given case, to
authorize an amendment, the general rule is that an amendment should be allowed
at any stage of an action for the purpose of determining the real questions in
controversy between the parties, provided, notably, that the allowance would
not result in an injustice to the other party not capable of being compensated
by an award of costs and that it would serve the interests of justice.
[4]
WHEREAS
in the case of an amendment, as in an application to strike a proceeding, the
amendment should be allowed unless it is plain and obvious that the amendment
is bound to fail (see Raymond Cardinal et al. v. Her Majesty the Queen,
unreported decision of the appeal division of this Court dated
January 31, 1994, docket A‑294‑77, Heald, Décary and
Linden JJ.A.).
[5]
WHEREAS
in Visx v. Nidek [1998] F.C.J. No. 1766, the Federal Court of Appeal
also added the following statements from an 1886 decision to the agenda:
The
rule of conduct of the Court in such a case is that, however negligent or
careless may have been the first omission, and however late the proposed
amendment, the amendment should be allowed, if it can be made without prejudice
to the other side. There is no injustice if the other side can be compensated
by costs; but, if the amendment will put them into such a position that they
must be injured, it ought not to be made.
[Emphasis
added.].
[6]
WHEREAS
the Court is satisfied based on the above principles and after having heard the
parties that the amendments the plaintiffs are seeking should be allowed;
[7]
WHEREAS,
consequently, it is logical and reasonable to require that the questions listed
in Appendix “2” of the plaintiffs’ motion record be answered;
[8]
WHEREAS
it is appropriate that the answers to be provided under Appendix “2” may be
followed by an examination in person and that the examination take place in
Montréal;
[9]
WHEREAS
it is appropriate that the new defendant, 9197-4907 Québec Inc., be allowed to
conduct an examination for discovery of the plaintiffs if it desires;
[10]
WHEREAS
the above factors must result in the adjournment of the pre-trial conference
scheduled for April 2, 2009, and the replacement of the scheduling order
from November 18, 2008, with the order that follows;
[11]
WHEREAS
the Court finds that the costs of this motion must be awarded to the
plaintiffs, even though some remedies they were seeking are not granted to them
through this order.
ORDER
THE
COURT ORDERS THAT:
The
plaintiffs’ motion is allowed as follows, with costs. All other remedies are
refused:
1.
The
plaintiffs are granted leave to serve and file, on or before March 26, 2009, an
amended statement of claim similar to the one attached as Appendix “1” to the
motion record dated March 2, 2009. However, this amended statement of
claim should not refer to or include the exhibits as in the one currently
filed;
2.
The
defendants’ amended statement of defence shall be served and filed on or before
April 3, 2009;
3.
The
plaintiffs’ amended reply, if applicable, shall be served and filed on or
before April 10, 2009;
4.
A
new affidavit of documents from the defendants, including defendant 9197-4907
Québec Inc., shall be served to the plaintiffs on or before April 10,
2009;
5.
Defendant
Jean Gagné shall respond, on or before April 10, 2009, in his personal
capacity and as a representative of 9197‑4907 Québec Inc., to the
questions listed in Appendix “2” attached to the motion record dated
March 2, 2009, in writing in the form of an affidavit or solemn
declaration;
6.
If
the plaintiffs notify the defendants at least five (5) days in advance, the
defendants, Jean Gagné and 9197‑4907 Québec Inc., shall be subject to an
examination in Montréal, on or before April 28, 2009, with regard to any
questions that may arise from the responses provided to the questions listed in
Appendix “2” of the motion record dated March 2, 2009, as well as to any
questions arising from the amendments listed in points 1 to 4 above;
7.
In
addition, if defendant 9197-4907 Québec Inc. notifies the plaintiffs at least
five (5) days in advance, the representatives of the plaintiffs shall be
subject to an examination for discovery on or before April 29, 2009, also
in Montréal;
8.
The
parties shall serve and file amended pre-trial memoranda on or before
May 15, 2009;
9.
The
affidavits and statements from the plaintiffs’ expert witnesses shall be served
and filed on or before May 15, 2009, and those from the defendants shall be
served and filed on or before June 15, 2009;
10.
The
pre-trial conference that was to be held on April 2, 2009, shall be held
instead before this Court on July 7, 2009, at 9:30 a.m., in Montréal, in
person.
“Richard Morneau”
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