Date: 20070418
Docket: T-466-05
Citation: 2007
FC 399
BETWEEN:
GENERAL MOTORS CORPORATION,
GENERAL MOTORS OF CANADA LIMITED
Plaintiffs
and
DIABCO INTERNATIONALE INC.,
MOUHAMAD ALI DIAB,
AUTO MASTER SUPPLIES KING INC., 5B GROUP
INTERNATIONAL INC.
AND AYAD (EDDY) KARKOUTI and JOHN DOE,
JANE DOE
AND OTHER PERSONS UNKNOWN
TO THE PLAINTIFFS WHO OFFER FOR SALE, SELL, IMPORT,
EXPORT, MANUFACTURE ADVERTISE OR DEAL IN
COUNTERFEIT ACDELCO MERCHANDISE
Defendants
and
DIABCO INTERNATIONAL INC.
MOUHAMAD ALI DIAB
Third parties
and
AYAD (EDDY) KARKOUTI AND
5B GROUP INTERNATIONAL INC.
Third parties
REASONS FOR ORDER
(Delivered from the bench in Montreal, Quebec
on April 13, 2007)
HUGESSEN
J.
[1]
Defendants Ayad (Eddy) Karkouti (Karkouti) and 5B International
Inc. move to adjourn the present hearing of the plaintiff's summary judgment
motion and to produce further evidence. This, of course requires the variance
of the scheduling Order made herein December 14, 2006, which fixed today's
hearing some four months into the future.
[2]
The grounds invoked are, first that defendants' present solicitor
only came on the file two weeks before the case management conference at which
the scheduling Order of December 14, 2006, was made and did not have adequate
time to familiarize himself with it beforehand; and, second, his client now
wishes to produce new evidence from the Chinese supplier of the allegedly
counterfeit goods which are at the heart of the present action.
[3]
Overlooking, but not thereby excusing, the fact that the motion
is supported only by a solicitor's affidavit, I shall dismiss the motion for
two reasons:
a) The fact that a solicitor has only recently come on a file
where there is no evidence, or even an indication, that the previous solicitor
has misconducted himself, does not excuse delaying a summary judgment motion
which was already, at the time of the December 14, 2006, case management
conference some 11 months old. A client who changes solicitors has to hand on
the file to his new solicitor, and the latter has to accept it, in the
condition in which it then is. Changing one's lawyer will rarely, if ever,
justify delaying the progress of a lawsuit.
b) More fundamentally still, a motion which seeks in effect to
introduce new evidence which is not accompanied by affidavit material
containing, or at the very least describing in detail the proposed evidence,
stands little or no chance of success. Here, not only is there no such affidavit
material but the defendant Karkouti admitted when cross-examined only two
months ago that he had not even contacted the alleged Chinese supplier of the
goods. His solicitor's assertion today that his client wishes to produce such
evidence lacks all conviction.
[4]
The motion will be dismissed with costs.
“James
K. Hugessen”
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