Date:
2007037
Docket:
A-279-06
Citation: 2007
FCA 95
CORAM: DESJARDINS
J.A.
DÉCARY
J.A.
NADON
J.A.
BETWEEN:
WINNIPEG ENTERPRISES CORPORATION
and
JOHNSTON SPORT ARCHITECTURE INC.
and
ASTROTURF SURFACES CANADA LTD.
Appellants
and
FIELDTURF
(IP) INC.
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
This
is an appeal from the order of Harrington J. dismissing an appeal from an order
of Prothonotary Morneau (T-350-03, May 12, 2006), which was made in his
capacity as case manager pursuant to Rule 385(2). The respondent (the plaintiff
in a patent infringement action) was ordered to explain why it had failed to
comply with a schedule set out on July 29, 2005. After examining the written
submissions of the parties, the Prothonotary allowed the matter to continue and
he set out a new timetable.
[2]
The
appellants (the respondents and counter-claimants in the action) appealed the Prothonotary’s
order to Harrington J. At the same time they filed a motion under Rule 167 for
dismissal of the proceeding for delay. The motion for dismissal and the notice
of appeal were joined in a document entitled “Notice of Motion in appeal of an
order from a Prothonotary and Notice of Motion for dismissal for delay”. The
fact that counsel says that his motion for dismissal had been ready for some
time prior to the status review is of no consequence: as far as the Court is
concerned, it is the time of filing of the motion which is relevant, not the
time of its alleged preparation. The fact is, simply, that when the motion for
dismissal was filed, status review had already been ordered and, furthermore, it
had already been ruled upon.
[3]
The
Judge dismissed the appeal. He also dismissed the motion for dismissal as being
premature.
The Status Review
[4]
The
Judge found that the standard of review to be applied was that of “patently
wrong”. He was of the view that the impugned decision was not vital to the
final issue of the case. One of the grounds he relied on was that even if the
action were dismissed for want of prosecution, a fresh action would not be time-barred.
[5]
This
last ground is irrelevant. The issue on a status review is whether the
proceeding should be allowed to continue, not whether it could be started over
again if it were to be dismissed for delay. In any event there is a real
possibility that the filing of a new proceeding would be struck out on the
ground that it is an abuse of process (see Sauvé v. Canada, 2002 FCT
721).
[6]
Contrary
to the Judge’s findings, a decision made on a status review is vital to the
final issue of the case because the prothonotary may have ended up dismissing
the action for delay (see Rule 382(2)(c). As stated in Canada v.
Aqua-Gem Investments Ltd. (C.A.), [1993] 2 F.C. 425 (C.A.) at paragraph 98
(QL), a decision which can be either interlocutory or final depending on how it
is decided, even if interlocutory because of the result, must nevertheless be
considered vital to the final resolution of the case.
[7]
This
Court has further held, in Merck & Co. Inc. v. Apotex Inc., 2003 FCA
488, [2004] 2 F.C.R. 459, at paragraphs 40 and 41, that the rule applies
even where the decision was rendered by a prothonotary in his capacity as case
manager. I appreciate that the status review, here, is not one ordered by the
court through the mechanical application of rule 380, but one ordered by a
prothonotary in his management function under rule 385(2), but the effect of
the decision on the rights of the parties is the same.
[8]
Because
the Judge relied on an irrelevant consideration and did not apply the proper test,
this Court must put itself in his shoes and exercise its own discretion de
novo.
[9]
The
test on status review under Rule 382 was set out in Stoney Band v. Canada,2005
FCA 15, [2005] F.C.J. No. 33 (C.A.) (QL). The onus is on the plaintiff
to show: 1) the reasons why the case has not moved forward faster and whether
those reasons justify the delay that has occurred; and 2) the steps the
plaintiff proposes to move the matter forward. The Court in Stoney Band
also held that prejudice to the defendant should also be considered as part of
the two points considered above. On this aspect, though, the Court notes at
paragraph 38 that where a defendant waits for a Notice of Status Review to make
a prejudice argument, “that argument will have less weight than if brought on a
motion to dismiss for delay”.
[10]
In
the case at bar, as I have already noted, the appellants filed their motion to
dismiss for delay before the Motions Judge only after the Notice of Status Review
had been dealt with by the Prothonotary.
[11]
Considering
the illness of an important witness, the existence of various proceedings,
including a counterclaim and a recently amended statement of claim, the fact
that other patent infringement actions are pending before the Court against
multiple other defendants who are all represented by the same law firm, the
fact that all these cases are specially managed by the Prothonotary and are
moving along and, finally, the fact that there has been a regrettable lack of
cooperation between the parties since the very beginning and that both sides
share some blame for the long delay, I am of the view that this claim should be
allowed to proceed. The parties should be on notice that the Court is unlikely
to tolerate any further delay.
Motion for dismissal
[12]
The
usual practice, in the Federal Court, is to disallow the taking of further steps
in the proceeding during status review. As noted by Pelletier J. (as he then
was) in Time Warner Entertainment Co. v. Jane Doe et al. (2000),
186 F.T.R. 303 (F.C.), at 305, “Allowing further steps to be taken during
status review effectively pre-empts the status review process”. In Canada v. Spelrem (2001), 211
F.T.R. 274 (F.C.), the Court stated at paragraph 2 that it was under no
obligation to deal with a bare motion for default judgment filed in response to
a Notice of Status Review.
[13]
The
filing of a motion for dismissal is a further step in a proceeding. As such it
should await the final disposition of the status review. If a party wishes to
file such a motion afterwards, it will be submitted to the case management
judge or prothonotary (see Rule 385(1)). Harrington J. was therefore correct in
concluding that the motion for dismissal under Rule 167 was premature.
[14]
That
practice is reflected in the matter of Bell v. Bell Estate et al. (2000),
187 F.T.R. 67 (F.C.). Prothonotary Giles had allowed the proceeding to continue
on June 21, 1999. As a result of further procrastination by the plaintiff, the
defendants filed a motion to dismiss for delay on August 24, 1999. That motion
was granted by Prothonotary Lafrenière in the following terms:
[34] The plaintiff has
on numerous occasions disregarded deadlines imposed by the Court. There has
been a pattern of non-compliance on his part which has resulted in a
substantial delay in moving the proceeding forward. The lackadaisical attitude
of the plaintiff should, in my view, be strongly censured by the Court.
[15]
I
also note with interest the comments of McGillis J. in Multibond Inc. v.
Duracoat Powder Manufacturing Inc. (1999), 177 F.T.R. 226 (F.C.), at
paragraph 15:
Although the Rules provide in rule 167 for a motion to
dismiss an action on the ground of undue delay, it is expected that such
motions will be only very rarely brought by a party, given the active role now
assumed by the Court in monitoring the status of all proceedings.
Disposition
[16]
I
would dismiss the appeal with costs and refer the matter to the Prothonotary in
order to set out an updated and, if he so opines, a more comprehensive
schedule.
“Robert Décary”
“I
agree.
Alice Desjardins J.A.”
“ I
agree.
M. Nadon J.A.”
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