Date: 20061220
Docket: A-62-06
Citation: 2006 FCA 416
Present: LÉTOURNEAU
J.A.
BETWEEN:
REMO IMPORTS LTD
Appellant
and
JAGUAR CARS LIMITED
and
FORD MOTOR COMPANY OF CANADA,
LIMITED/FORD DU CANADA LIMITÉE
Carrying on business as JAGUAR CANADA
Respondents
REASONS FOR ORDER
LÉTOURNEAU J.A.
[1]
He who
plays with fire ends up burning himself. In this case, both parties have been
playing with fire and shall live with the consequences of it.
[2]
The
appellant and the respondents have been engaged in a war as to the contents of
their respective Memorandum of Fact and Law (memorandum). The war has been
conducted at the expenses of the Court and scarce judicial resources. Both
parties have failed to live up to the letter and spirit of the Federal
Courts Rules.
[3]
The whole
saga started with an Order of Sexton J.A. dismissing the appellant’s request to
file a memorandum in excess of 30 pages. The Order was issued on August 9,
2006.
[4]
On
September 5, 2006, Décary J.A. noted that the appellant, in adding “end notes”
to its memorandum, was attempting to circumvent the Order of Sexton J.A. He
ordered that the memorandum be refused for filing and be sent back to the
appellant.
[5]
On
November 9, 2006, Noël J.A. observed in an Order that he issued that “both the
appellant and the respondent, by incorporating into their memoranda substantial
arguments found elsewhere in the record, are circumventing the prior order of
this Court limiting the length of their memorandum to 30 pages”. He went on to
add:
This is the second time
that compliance with that order is referred to the Court for adjudication.
[6]
Noël
J.A.’s Order directed the parties to act as follows:
The Registry
is directed to send the Memoranda back to the parties. The appellant is given a
period of fifteen days to re-file its Memorandum without incorporating by
reference the 49 pages Amended Notice of Appeal.
The
respondents will re-file their Memorandum within ten days from the date of
service of the appellant’s Memorandum without the inclusion in Appendix C of
excerpts from their Trial Memorandum and without the incorporation of Appendix
D.
The material
which the parties wish to incorporate into their memorandum is part of the
record and can be referred to in the course of the hearing. However, the
purpose of the memorandum is to set out a concise statement of the facts and
the submissions (Rule 70).
The parties
are asked to abide by the letter and the spirit of the prior order of this
Court and address the issues on appeal within the 30 page limit.
[7]
The
respondents have, on December 4, 2006, served and filed a Supplemental Appeal
Book that basically contains their memorandum at trial. The appellant who still
does not have clean hands, as we shall see, objects to such filing.
[8]
After
reviewing the parties’ arguments and this Court’s previous Orders, I am
satisfied that the respondents are attempting to achieve something that was not
authorized by the Orders of Noël J.A., Nadon J.A., Sexton J.A. and Décary J.A.
Therefore, the respondents’ Supplemental Appeal Book will be struck from the
record and sent back to them.
[9]
In
addition, Appendix C to the respondents’ memorandum will be deleted. If the
respondents feel that the references found therein will be useful to the Court,
they can incorporate them into their memorandum with the exclusion of any
reference to their Supplemental Appeal Book and the material contained therein.
[10]
This
brings me to the two memoranda submitted by the appellant and the respondents.
Both memoranda are defective and in violation of Rules 65 and 70 of the Federal
Courts Rules. Systematically, the pages contain more than 30 lines. The top
and bottom margins are not respected. In the end, the memoranda contain more
than 30 pages and are in violation of Sexton J.A.’ Order: see Merchant v.
Her Majesty the Queen, 2001 FCA 19, at paragraphs 10 and 11.
[11]
So far,
both parties have been abusing the process of the Court with impunity. The buck
stops here.
[12]
The
memoranda of both the appellant and the respondents will be struck from the
record and returned to them. They both shall serve and file a new memorandum by
January 17, 2007 that strictly complies with Rules 65 and 70 of the Federal
Courts Rules. Failure by any party to abide by this Court’s Order will lead
to sanctions ranging from a deemed waiver by the defaulting party of its right
to file a memorandum, dismissal of the proceeding without further notice and
the imposition of costs to counsel of record, to the issuance of a show cause
order as to why the defaulting counsel of record should not be found guilty of
contempt.
“Gilles
Létourneau”
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