Date:
20060327
Docket: T-697-02
Citation:
2006 FC 386
Ottawa,
Ontario, the 27th day of March 2006
Present:
The Honourable Mr. Justice de Montigny
BETWEEN:
OSMOSE-PENTOX
INC.
Applicant
and
SOCIÉTÉ
LAURENTIDE INC.
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant filed a motion in this Court to appeal from an order made by
Prothonotary Richard Morneau on December 14, 2005, as authorized by
rule 51 of the Federal Courts Rules, 1998. In his decision, the
prothonotary denied the applicant’s motion for confidentiality, thereby making
available (when his order became final) the applicant’s motion records of
August 29 and October 11, 2005. Concurrently, he also ordered the
severance of the proceeding so that questions of liability would be decided first,
and the question of relief dealt with subsequently in a separate proceeding.
Finally, he ordered the applicant to pay costs in the amount of $3,500.
BACKGROUND TO PROCEEDINGS
[2]
This
dispute arose when the applicant, on May 7, 2002, served on the respondent
the originating document of an action in which it sought a permanent injunction
and damages or profits made by the respondent from the illegal use allegedly
made by it of the registered trademark “Conservator”. That was a long time ago.
Since then, many proceedings have been commenced on either side, so much that
the examinations for discovery have not yet been completed and the resulting
documents have not all been sent.
[3]
For the
purposes of this appeal, it is not necessary to review individually all of the
orders made by various judges of this Court and by the prothonotary assigned by
the Chief Justice to assist the judge designated to manage the proceeding. I
will simply recall the principal points in the case, in so far as they are
relevant to understanding the issues raised before me.
[4]
It should
first be recalled that my colleague Mr. Justice Beaudry granted the applicant’s
motion for an interlocutory injunction and an interim injunction on
January 31, 2003. A motion to review this order was denied by Mr. Justice
Beaudry on March 4, 2003 and a motion to stay dismissed by the Court of
Appeal on March 11, 2003. In addition, the respondent on May 2, 2003
discontinued the appeal it had filed from the order.
[5]
On
February 21, 2003, Madam Justice Johanne Gauthier made an order denying
the respondent’s motion to sever the proceedings, denying the applicant’s
motion for judgment by default and a permanent injunction, and ordering that
the respondent’s affidavit of documents and the applicant’s amended affidavit
of documents be exchanged on or before April 25, 2003. As to the motion to
sever proceedings, Madam Justice Gauthier wrote:
[translation]
As several substantive issues raised by
the application are also relevant to the assessment of damages, it is not clear
that severance of the proceeding would result in the better administration of
justice.
[6]
On
April 25, 2003, the applicant’s representative and that of the respondent
exchanged their amended affidavits of documents. Pursuant to a motion by the
applicant for a more accurate or complete affidavit of documents, on
July 16, 2003, Prothonotary Morneau ordered that an amended affidavit
of documents be filed by the respondent. This order was challenged by the
applicant, which would have liked to obtain a greater number of documents; but
Mr. Justice Blais of this Court, and subsequently the Court of Appeal,
dismissed the applicant’s appeal in decisions rendered on September 5,
2003 and September 20, 2004 respectively.
[7]
On
January 10, 2005, counsel for the applicant proceeded with the first
examination of the respondent’s representative. Many objections were raised at
that time which would be resolved by Prothonotary Morneau in an order made
on April 25, 2005.
[8]
On
May 9, 2005, the respondent made an offer of settlement to the applicant,
which was rejected. Then, on May 19, 2005, the respondent filed a motion
to compel mediation, which was also denied by the Court on May 24, 2005.
[9]
The
examination of the respondent’s representative accordingly proceeded on May 25,
2005. At that time, the applicant was given a number of documents by counsel
for the respondent, the communication of which had been ordered by the
prothonotary in his order of April 25, 2005. Then, on June 30, 2005,
the examination for discovery of the respondent’s representative began. As both
examinations gave rise to a number of objections, on August 5, 2005, the
prothonotary directed that the motions to decide these objections would be
heard jointly at a special hearing on October 25, 2005. Despite these
objections, the respondent agreed to give the applicant a voluminous data bank,
containing approximately 10,000 pages of confidential and privileged
commercial information relating to its activities, on the sole condition that
the applicant undertake to respect its confidentiality; that offer is still
being considered by the applicant.
[10]
On
August 29, 2005, the applicant filed in the Court an ex parte Anton
Piller type motion, whereby the applicant sought not only the relief typical of
such a motion but also a further remedy, the nature of which the respondent
still does not know. This motion was denied by Mr. Justice Lemieux on
September 9. It is important to quote here the order by
Mr. Justice Lemieux in full:
[translation]
THE COURT ORDERS THAT:
1.
The ex
parte motion dated August 29, 2005 by the applicant Osmose-Pentox Inc.
seeking an Anton Piller order giving access to certain documents of Société
Laurentide Inc. in this matter is denied without costs.
2.
In my
opinion, this motion is premature as the examination of Mr. Buisson on the
filing of the documents in the possession of Société Laurentide Inc. (the
respondent) is to continue (see order by Prothonotary Morneau dated
July 21, 2005). The applicant’s concerns about the documents filed by the
respondent could be addressed more extensively in that context.
3.
I am also
of the opinion that this motion does not harmonize well with the Federal Court
of Appeal’s judgment on September 20, 2004 and the subsequent directions
by Prothonotary Morneau.
[11]
On
learning that his order had not been sent to all the parties pursuant to
rule 395 of the Rules of this Court, Mr. Justice Lemieux on
October 6, 2005 ordered the Registry to send the order to the respondent
without delay. As soon as it learned of this second order by
Mr. Justice Lemieux, the applicant hastily sent a letter to the
Registry asking for an interim order of confidentiality, which was granted by
Prothonotary Morneau on the same day with a direction to file a formal
motion record no later than October 12, 2005. The record was indeed filed ex
parte on October 12. Further, the applicant on October 11, 2005
filed another ex parte motion seeking the other remedy already sought in
the Anton Piller type motion.
PROTHONOTARY’S DECISION
[12]
In a
lengthy and carefully reasoned decision delivered on December 14, 2005,
Prothonotary Morneau denied all the remedies sought by the applicant in
its motion for confidentiality. He also denied the applicant’s motion of
October 11, 2005, and further ordered the severance of the proceeding.
[13]
Dealing
first with the motion for confidentiality, the prothonotary said that, in his
opinion, this motion was tardy since the applicant should have sought this
relief in its motion of August 29: but for the Registry’s failure to communicate
Mr. Justice Lemieux’s order of September 9, 2005 to both parties, the
applicant would have learned of it at that time. He also rejected the
applicant’s arguments that its Anton Piller motion should be kept confidential
in order to preserve its right to file a new similar motion in future and to
preserve its surprise effect: the prothonotary considered that such a concern
was not justified as the Court had not accepted the allegations of bad faith
made against the respondent, and any new motion should be based on new facts.
Finally, he ruled that the motion for confidentiality did not meet the two-part
test developed by the Supreme Court of Canada in Sierra Club of Canada v.
Canada (Minister of Finance), [2002] 2 S.C.R. 522.
[14]
On the
applicant’s motion seeking the other remedy, the prothonotary first observed
that it [translation] “burdened
the Court record, was another ex parte proceeding and required the Court
to go to great lengths not to reveal before the final decision the matters
which the applicant had for the moment drawn to the Court’s attention ex
parte”. Although in his order of September 9
Mr. Justice Lemieux did not rule expressly on this remedy, which was
sought in the alternative in the Anton Piller motion filed on August 29,
2005, Prothonotary Morneau considered that he was certainly aware of it
and had impliedly dismissed it. He further noted that the applicant had filed
no motion pursuant to paragraph 397(1)(b) of the Rules asking
Mr. Justice Lemieux to reconsider his order.
[16]
The
prothonotary so ruled after having applied the test developed in Illva
Saronno S.p.A. v. Privilegiata Fabbrica Maraschino “Excelsior”, [1999] 1
F.C. 146. Noting that the calculation of profits always proved to be a lengthy
and costly exercise, and that the parties had become bogged down even at the
stage of examinations for discovery on this question, the prothonotary
considered that it would be more appropriate to deal immediately with issues of
liability and the injunction sought. This appeared to him to be all the more
necessary as the applicant had already been granted an interlocutory injunction
more than three years before (since January 2003). The prothonotary said
he was aware of the fact that Madam Justice Gauthier had already
denied a motion to this effect in her order of February 21, 2003; but in
his opinion that order, made at a relatively early stage of the proceeding and
before it fell under special management, could not preclude his own review of
the situation now that he had been seized of this matter. Relying on the case
law (Remo Imports Ltd. v. Jaguar Canada Ltd., 2003 FCT 74; Sawridge
Band v. Canada, [2002] 2 F.C. 346 (F.C.A.)), therefore, he
considered that the broad discretion enjoyed by the manager of a proceeding to
move a case forward authorized him to vary the order made by
Madam Justice Gauthier and to order that the proceeding be severed.
[17]
The
prothonotary awarded costs to the respondent in the amount of $3,500, based on
paragraphs 400(3)(a), (c), (g) and (i) as well
as subsection 400(4) of the Rules.
ANALYSIS
[18]
It is well
settled that interlocutory decisions made by a prothonotary, and in particular
those he makes as the manager of a specially-managed proceeding, should not be
lightly revisited. A judge sitting in review cannot exercise his discretion in
the place of the prothonotary unless the question to be decided is vital to the
final issue of the case (and this is not the case), or the prothonotary’s
decision was so clearly wrong that it was based on a wrong principle or
misapprehension of the facts (Canada v. Aqua-Gem Investments Ltd.,
[1993] 2 F.C. 425, at paragraph 95 (F.C.A.); Merck & Co. v. Apotex
Inc., 2003 FCA 488, (2003) 30 C.P.R. (4th) 40, at page 53 (F.C.A.); Z.I.
Pompey Industrie v. Ecu-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450,
at page 461).
[19]
It is also
beyond question that a case manager, whether a judge or a prothonotary, must
enjoy a very broad discretion to ensure that the case will move forward
promptly and in an orderly manner. This is the very spirit of the rules
governing specially-managed proceedings, and in particular rule 385. In
this respect, Prothonotary Morneau quite correctly cited the comments made
by Mr. Justice Gibson in Remo Imports Ltd. v. Jaguar Canada
Ltd., supra; it is appropriate to quote them hereunder:
[11] In Sawridge Band v. Canada, [2002] 2 F.C. 346 (C.A.),
Justice Rothstein, for the Court, wrote at paragraph 11 of the
Court’s reasons:
We would take this opportunity to state the position of this Court
on appeals from orders of case management judges. Case management judges must
be given latitude to manage cases. This Court will interfere only in the
clearest case of a misuse of judicial discretion.
[12] In further reasons issued contemporaneously with the reasons from
which the foregoing quote is extracted, (2001), 283 N.R. 112 (F.C.A.),
Justice Rothstein, once again for the Court, and by reference to the
reasons from which the foregoing quotation is drawn, wrote at
paragraph [4]:
Questions of joinder and severance are quintessential subject
matters of case management. Such questions are to be decided by the exercise of
discretion by a case management judge familiar with the proceedings. On appeal,
a court would interfere with such decisions only where there is demonstrated a
clear misuse of judicial discretion. . . . [citation omitted]
[13] I extended the same principles to the role of case management
prothonotaries and to the relationship between case management prothonotaries
and judges of the Trial Division of this Court sitting on appeal from their
decisions (see: Microfibres
Inc. v. Annabel Canada Inc.
(2001), 16 C.P.R. (4th) 12 (F.C.T.D.)). At pages 16 and 17 of the cited
report of my reasons, I wrote:
Case Management prothonotaries, like Case Management judges, are
familiar with the proceedings that they are managing to a degree that a trial
judge, sitting on appeal from a prothonotary’s discretionary decision in such a
context, usually cannot be.
While some may have regarded such an “extension” as superfluous
since “case management judge” is defined in rule 2 of the Federal
Courts Rules, 1998, SOR/98-106, to include a case management prothonotary,
I did not share that view since Justice Rothstein was writing for the
Court of Appeal and appeals from case management prothonotaries are taken to a
judge of the Trial Division and not to the Court of Appeal.
[14] Before me, counsel for the Defendants urged that
Prothonotary Lafrenière’s refusal of permission to add Mr. Bassal as
a defendant to their Counterclaim amounted to a decision vital to the final
issue of the case and further, was clearly wrong in that the Prothonotary had
fallen into error of law or so decided based upon a misapprehension of the
facts. By contrast, counsel for the Plaintiff urged that the decision under
appeal was not vital to a final issue of the case and that
Prothonotary Lafrenière’s decision that is at issue could not be said to
be clearly wrong. Rather, counsel for the Plaintiff urged it was a
discretionary decision of a Prothonotary acting in his role as a case manager
and should not be disturbed. I adopt the position of counsel for the Plaintiff.
[20]
Based on
these principles, it does not seem warranted for this Court to intervene and
vary the manner in which the prothonotary disposed of the motion for
confidentiality and of the motion of October 11, 2005 seeking the other
remedy. As to the motion for confidentiality in particular, it seems to the
Court that the prothonotary could properly find that the silence of
Mr. Justice Lemieux as to confidentiality in his order of
September 9, 2005 flowed from his denial of the applicant’s motion of
August 29, 2005.
[21]
Although
Mr. Justice Lemieux qualified this motion as “premature”, he nevertheless
decided to deny it. That is the real gist of his order. If he had intended to
reserve the applicant’s rights and remedies and allow it to submit its motion
at a later date, he could have made a ruling to this effect and adjourned it sine
die. That is clearly not what he chose to do. It is difficult to see how a
motion which has been denied could be stayed and filed again subsequently.
On the contrary, any new motion should be based on new facts if it is not to be
denied on the ground of res judicata.
[22]
If the
applicant wished to keep the very existence of this motion confidential, it
should have pleaded accordingly within the motion itself. Not only did it not
do this, but it also did not ask for this when the order was made on
September 9, 2005. It was not until after having learned of the second
order by Mr. Justice Lemieux on October 6, 2005, in which he
directed the Registry to communicate his original order to the respondent, that
this motion for confidentiality was filed. To say the least, it was not
unreasonable for the prothonotary to rule that the motion for confidentiality
was tardy.
[23]
Finally,
the Court is not persuaded that the prothonotary misapplied the two-part test
set out in Sierra Club, supra. It is true that an Anton Piller type
order is an extraordinary remedy, and that the secrecy surrounding it is
necessary for it to be effective. However, once the motion seeking that remedy
is denied (and not stayed), there is no longer any basis for preventing the
party affected from being apprised of it. Moreover, rule 395 provides that
the Court’s order and the reasons accompanying it, if applicable, should be sent
to the parties. This means that the respondent will inevitably become aware of
the motion and possibly of part of its content, at least indirectly, when he is
apprised of the order and the reasons thereof. Would it be logical not to
disclose the motion on which the order is based?
[24]
We should
never lose sight of the fact that confidentiality is an exception to the rule
that judicial proceedings and argument should be public, and therefore must be
given a restrictive interpretation. The wish to preserve the element of
surprise with respect to certain evidence that may be required in connection
with a subsequent Anton Piller motion does not appear to the Court to be a
sufficient reason for overriding a litigant’s right to a fair trial and is
hardly consistent with the rules laid down by the Supreme Court in Sierra
Club, supra. In addition, in dismissing the applicant’s motion,
Mr. Justice Lemieux held that the applicant’s concerns regarding the
documents filed by the respondent could be addressed more extensively in the
examinations for discovery and did not warrant the granting of an Anton Piller
injunction, which is an exceptional remedy.
[25]
It appears
to the Court that the prothonotary properly decided to deny the motion seeking
another remedy brought ex parte on October 11, 2005. Although
Mr. Justice Lemieux did not expressly refer in his order of
September 9, 2005 to the remedy sought in the alternative by the applicant
by its motion of September 29, 2005, I have to assume that he denied it,
as with the motion seeking an Anton Piller injunction.
Prothonotary Morneau ruled that it would be [translation] “presumptuous” to think that the Court did not
apprise itself of the record as a whole and of the remedies sought by the
applicant before dismissing its motion: I see nothing obviously wrong with that
ruling, which on the contrary appears to be based on common sense.
[26]
The
applicant did submit that several of the arguments made in support of the other
remedy sought related to specific and individual facts which could not be
resolved by proceeding with the examinations, as Mr. Justice Lemieux
suggested for the motion seeking an Anton Piller injunction. In the applicant’s
view, this would mean that Mr. Justice Lemieux denied the other
motion without giving reasons, which would amount to an oversight on his part,
even incompetence, and this is inconceivable in view of the specific points he
mentioned in denying the Anton Piller motion.
[27]
Though
attractive, this argument does not persuade the Court. It often happens that motions
are denied without reasons, and that cannot be treated as an oversight, still
less as incompetence. One could speculate indefinitely about the reasons which
prompted Mr. Justice Lemieux not to explain why he was denying the
other motion. In fact, it is entirely possible he did not think it necessary to
explain himself because he regarded it as quite secondary to the motion seeking
an Anton Piller injunction, or because he felt that such reasons were
improper and inappropriate in an ex parte proceeding of such an
exceptional nature. However, at the end of the day, regardless of his reasons,
Mr. Justice Lemieux denied the motion in its entirety, after having
reviewed the record, and there is no basis for this Court to believe that his
ruling applied only to that part of the motion seeking an Anton Piller
injunction. The fact that the applicant may have submitted a draft order to the
Court referring only to the relief ordinarily sought in a motion seeking an
Anton Piller injunction does not make any difference. As to the fact that the
applicant did not make use of paragraph 397(1)(b) of the Federal
Courts Rules so that the Court could rule on the other remedy sought, I am
of the view that the prothonotary could reasonably infer from this that the
applicant did not regard it as an oversight. The applicant may now well argue
that the order by Mr. Justice Lemieux was completely in accordance
with its expectations and the lack of any reference to the other remedy sought
was not an oversight: the fact remains that the best way of preserving its
rights was to draw the attention of Mr. Justice Lemieux.
[28]
In view of
all the foregoing, I am of the view that the prothonotary did not err in ruling
that the motion filed by the applicant on August 29, 2005 was denied by Mr. Justice Lemieux
as a whole. Therefore, it could not again file a motion on October 11,
2005 seeking the same remedy and based on the same facts. The matter was res
judicata and the prothonotary was entirely justified in denying this new
motion.
[29]
What is
the situation with the order for severance? In his decision of
December 14 last, the prothonotary decided to order severance of the
proceeding proprio motu [translation]
“so that issues of liability (that is, the issue of infringement of the
applicant’s trademark at stake and of the invalidity of that mark), could be
decided first, and the issue of relief (profits or damages) could be decided in
a separate proceeding if the Court ruled that the mark at issue was valid and
had been infringed”. The issue that arises is not so much whether the decision
was appropriate in view of the context but rather whether he had jurisdiction
to make such an order.
[30]
In his
reasons, the prothonotary relied on the tests developed in Illva Saronno
S.p.A. v. Privilegiata Fabbrica Maraschino “Excelsior”, supra, to rule
that, in the circumstances it was warranted to order that the proceeding be
severed pursuant to rules 47(1) and 107. In particular, he relied on the
fact that the awarding of the profits made by the respondent as damages was
always a lengthy and costly exercise, even in the most favourable
circumstances. In this case, such an exercise seemed likely to drag on forever
and take on unreasonable proportions, as a result of the parties’ actions. What
is more, it seemed important to him that the Court rule forthwith on the issues
of liability, in view of the interlocutory injunction which had been granted to
the applicant in January 2003. In view of these new circumstances which
Madam Justice Gauthier could not foresee when she made her order, the
prothonotary considered that severance was “more likely than not to result in
the just, expeditious and least expensive determination of the proceeding on
its merits”, to use the language in Saronno, supra (at
paragraph 14).
[31]
It goes
without saying that I would find no difficulty in upholding the prothonotary’s
decision, but for the fact that it varies a prior decision by a judge. As I
have already mentioned, prothonotaries must be given very broad latitude in
managing proceedings assigned to them. This is especially true when, as herein,
the case is complex and the proceedings are increasing in number and likely to
be lengthy. In such situations, a prothonotary who has been assigned to manage
the proceeding is much more familiar with the case and the parties than a judge
hearing an appeal from one of his or her decisions. Ultimately, this is the raison
d’être of case management, largely conducted by prothonotaries, which would
be imperilled if their decisions were revisited every time a judge on appeal
chose to exercise his discretion differently.
[32]
That is
why the argument made by the applicant, seeking to establish that the
prothonotary submitted no new facts on which he could reconsider the order by
Madam Justice Gauthier, does not persuade this Court. As
Mr. Justice Pelletier wrote in Microfibres Inc. v. Annabel
Canada Inc., 2001 FCT 1032, [2001] F.C.J. No. 1427 (QL):
[14] The Prothonotary is the designated case manager for this file and has
been hearing various motions in that capacity. In making the order granting
leave, the Prothonotary was, once again, acting in the capacity of case
manager. Given the mandate of the case manager to give such directions as may
lead to the most just and expeditious and least expensive resolution of the
dispute between the parties, one can conclude that in those circumstances, the
case manager is acting outside the adversarial system. This is so because he is
entitled to act on his own motion. In my view, Rule 385 gave him the
authority to grant leave to bring a motion which would otherwise be caught by
the doctrine of res judicata and, in so doing, to set aside the
application of res judicata as it would apply to that motion.
[15] However, the policy behind the doctrine of res judicata
remains sound: there should be a finality to decisions so that parties are not
constantly relitigating the same question. The power of a case manager to
revisit a question which has already been decided once is not to be exercised
capriciously. In deciding whether the case manager has acted capriciously,
the test to be met is not whether the circumstances have changed sufficiently
that res judicata does not apply. The test is whether there exist facts
from which the case manager could conclude that the process of bringing the
case to a fair trial could be assisted by revisiting a particular question. The
case manager’s views on this question would, in my view, be entitled to
considerable deference. (Emphasis added.)
[33] The position is no different from the argument
made by counsel for the applicant, seeking to show that the prothonotary did
not take into account the respondent’s conduct and its persistence in refusing
to file a more complete affidavit of documents. Much emphasis was placed on the
fact that the respondent’s lack of cooperation was the primary cause of the
delays and the complexity of the proceedings, far more than the applicant’s
choice to opt for the profits allegedly made by the respondent. The assessment
made by the prothonotary of the best procedure to follow in resolving the
matter as fairly and effectively as possible, and the reasons which led him to
make that choice, seem to the Court to be at the heart of his discretion as a case
manager, and this Court will only intervene with great hesitation and in the
clearest cases on appeal from this type of decision. Despite the efforts made
by the applicant in its written and oral submissions, it did not persuade the
Court that the prothonotary made an obvious error in his assessment of the
facts.
[34] That being said, however, I must subscribe to the
applicant’s argument regarding the prothonotary’s lack of power in the very
special context of this matter. Rule 50(1)(g) expressly provides
that the prothonotary can make no order the effect of which is to stay, set
aside or vary an order of a judge, except for an order made pursuant to
paragraphs 385(a), (b) or (c). The wording of this
provision reads as follows:
|
50. (1) Prothonotaries – A prothonotary
may hear, and make any necessary orders relating to, any motion under these
Rules other than a motion
. . .
(g) to stay, set aside or vary an order
of a judge, other than an order made under paragraph 385 (a), (b)
or (c) . . .
|
50. (1) Protonotaires – Le protonotaire
peut entendre toute requête présentée en vertu des présentes règles – à
l’exception des requêtes suivantes – et rendre les ordonnances nécessaires
s’y rapportant :
[…]
g) une requête pour annuler ou modifier
l’ordonnance d’un juge ou pour y surseoir, sauf celle rendue aux termes des
alinéas 385a), b) ou c)…
|
[35] Accordingly, as Madam Justice Gauthier
did not make her order as a case manager, the prothonotary could not vary it or
set it aside by another order. Rule 47 (and hence rule 107) can be of
no assistance to him, since rule 50 is specifically to the opposite
effect, within the meaning of rule 47. Moreover, it is significant that a
prothonotary is given the power to vary an order by a judge when it was made in
the context of powers exercised by him or her as a case manager. From this it
must necessarily follow that the prothonotary does not have such a power when
the judge’s order was made in some other capacity.
[36] Although this result may seem excessively formalistic,
it is not without consequence, at least in this case. It should be borne in
mind that, in his order of October 24, 2003, the Chief Justice designated
Mr. Justice Hugessen to manage this proceeding, with the assistance
of Prothonotary Morneau. Accordingly, it is always possible for
Mr. Justice Hugessen to vary the order by
Madam Justice Gauthier, on the prothonotary’s recommendation or of
his own motion, and order that the proceeding be severed.
[37] Finally, I do not feel it is proper to revisit the
costs of some $3,500 awarded by the prothonotary to the respondent. Bearing in
mind once again the discretion vested in the prothonotary in his position as
case manager, it was quite open to him to take the parties’ conduct into
account in awarding costs (paragraph 400(3)(i)), as well as other
factors listed in paragraphs 400(3)(a), (c) and (g).
There is therefore no basis for intervening in this regard.
[38] For all the foregoing reasons, the applicant’s
motion appealing from the order by Prothonotary Richard Morneau on
December 14, 2005 is denied, except as regards his ruling on severance of
the proceeding. The matter will accordingly be referred back to the
prothonotary as soon as this order becomes final for him to set a new schedule.
JUDGMENT
THE COURT ORDERS THAT:
- The applicant’s motion
appealing the order of Prothonotary Richard Morneau on December 14,
2005 is denied, except as regards his ruling on severance of the proceeding.
The matter will accordingly be referred back to the prothonotary as soon as
this order becomes final for him to set a new schedule.
“Yves
de Montigny”
Certified
true translation
François
Brunet, LLB, BCL
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