Date: 19991221
Docket: T-2433-98
BETWEEN:
LEON GRINSHPUN,
Plaintiff,
- and -
THE UNIVERSITY OF
BRITISH COLUMBIA,
Defendant,
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This application for security for costs is in a simplified action pursuant to Rule 292. The Plaintiff claims copyright infringement of a boxing program. This Federal Court proceeding is one of several proceedings, all of the others, past or current, being in the Provincial court system.
BACKGROUND TO THE MOTION
[2] The Defendant brings the present motion for security for costs on the basis of Rule 416(1)(f) which provides that an Order for security for costs is available if "the defendant has an order against the plaintiff for costs in the same or another proceeding that remain unpaid in whole or in part, ...". The Defendant refers to taxed costs in a B.C. Supreme Court action of some $3,900 which the Plaintiff has not satisfied. In addition, as background, the Defendant refers to an affidavit sworn by the Plaintiff, in a companion B.C. Supreme Court action, on 23 September 1999, in support of an application to be declared indigent and therefore eligible for relief from the prescribed payment of Court fees and also to the 14 October 1999 Reasons of Madame Justice Southin, of the B.C. Court of Appeal, in which she notes "one the evidence before me, the applicant is indigent", but then goes on to say the appeal is bound to fail and thus the action remained struck out.
VOLUNTARY POSTING OF SECURITY
[3] In the present instance I referred the parties to Rule 298 which, subject to some limited exceptions, provides that "a motion in a simplified action shall be returnable only at a pre-trial conference ...". Security for costs is not one of the exceptions to Rule 298 nor, for reasons which I will shortly set out, ought the action be removed from the ambit of the simplified action rules in this instance so that security for costs might be sought. However I did point out to the parties that, on the facts, the Defendant had a strong argument that security for costs ought to be granted, but for Rule 298, and that the Defendant would be able to bring the motion for security for costs at the pre-trial conference early in the new year. The Plaintiff then offered to post reasonable security for costs under Rule 416(5) which provides for voluntary payment into Court by a plaintiff, at any time after the filing of a statement of claim, in order to provide security for costs. I set the amount at $5,000, with liberty to the Defendant to apply, at the pre-trial conference, for increase in the security under Rule 416(6). I now turn to some comments on Rule 298.
MOTIONS IN SIMPLIFIED ACTIONS
[4] The simplified action, governed by Rules 292 through 299, is a new procedure designed to streamline actions which embody purely monetary claims, of $50,000 or less, with a view to having such actions disposed of more quickly and at less cost than through a conventional action. To this end, the discovery process is circumscribed, evidence in chief is adduced by affidavit and, at least as equally important, Rule 298 mandates that motions, subject to some specific exceptions, are returnable only at the pre-trial conference. Rules 298(2) and (3) provides the four specific exceptions to the bar to earlier motions: first, an objection to the jurisdiction of the Court; second, a motion to strike out for want of a reasonable cause of action; third, the release of arrested property in an action in rem; and finally, a motion to have an action removed from the operation of the simplified rules, such motions may be brought either within the time for service of a defence, in the case of the first two exceptions and at any time in the case of the last two exceptions.
[5] From time to time I have removed a matter from the ambit of the simplified rules, in order to dispose of a motion and then, assuming that the proceeding still fits within the simplified action rules and that both justice and the intent of the simplified action proceedings is best served by that simplified procedure, have reinstated the matter as a simplified action. However, the exercise of that discretion requires special circumstances.
[6] The nature of special circumstances is indicated, to a large degree, by the nature of the exceptions to Rule 298, upon which I have already touched. Jurisdiction and want of a cause of action, two of the exceptions, are basic to any proceeding: such determinations ought not have to await a pre-trial conference for their determination. The release of a ship from arrest is an elemental part of the in rem procedure: it would be unthinkable to require a shipowner to wait months, until a pre-trial conference might be held, in order to apply for the release of a ship. These exceptions touch upon basic issues going to the essence of a proceeding, or are matters which must be dealt with immediately either to allow the action to proceed or to do justice. That, in my view, is the test by which to determine whether the Court, faced with an application for relief which does not come within the Rule 298 exceptions, ought to apply in order to remove an action from the simplified proceedings rule so a motion falling outside of the Rule 298 exceptions might be heard.
[7] As examples of when I would remove an action from the ambit of the simplified action rules in order to hear a motion, before a pre-trial conference, I have in mind extensions of time for service of the statement of claim, substitutional service, the adding of a necessary party, motions for the preservation of property and motions to allow the movement of a ship that is under arrest. Of course, this list is open-ended, however the subject matter of such a motion must either be basic to the action, or essential in order allow the action to proceed, or be matters which clearly cannot wait for a pre-trial conference.
[8] Returning to the present motion for security for costs and leaving aside that the Plaintiff offered to post security, security for costs is not an essential basic to an action or to its progress. While security for costs might be desirable relief to which a defendant is entitled, it is a matter which can wait and be heard, as mandated by Rule 298(1), at the pre-trial conference.
(Sgd.) "John A. Hargrave"
Prothonotary
December 21, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2433-98
STYLE OF CAUSE: LEON GRINSHPUN
v.
THE UNIVERSITY OF BRITISH COLUMBIA
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: December 20, 1999
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: December 21, 1999
APPEARANCES:
| Mr. Leon Grinshpun on his own behalf |
| Mr. David J. Wallin for the Defendant |
SOLICITORS OF RECORD:
Clark, Wilson
| Vancouver, BC for the Defendant |
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