Date: 19981105
Docket: T-477-98
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OTTAWA, ONTARIO, THE 5th DAY OF NOVEMBER 1998 |
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PRESENT: THE HONOURABLE ASSOCIATE CHIEF JUSTICE |
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Notice of motion by counsel for the defendant for an order setting aside the order made on June 15, 1998, against TRIPAP INC. on an ex-parte motion (Rule 210) filed by the plaintiff. |
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(Rules 208 and 399 of the Federal Court Rules, 1998) |
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The defendant must serve and file its defence within 21 days of the date of this order. |
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Costs will be in the cause. |
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Certified true translation |
Date: 19981105
Docket: T-477-98
Between:
JOHN E. CANNING LTD.
Plaintiff
- and -
TRIPAP INC.
Defendant
REASONS FOR ORDER
RICHARD A.C.J.:
[1] The defendant seeks an order under Rule 399 of the Federal Court Rules, 1998 setting aside the ex parte order, dated June 15, 1998, in which the judge granted a judgment by default on the ground that the defendant did not serve and file its defence within the period provided by the Rules.
[2] In these proceedings, I am satisfied that the defendant presented prima facie evidence demonstrating why the order should not have been made.
[3] The plaintiff made a third party claim against the defendant in Federal Court file number T-110-98, after an action was filed by McKeil Marine Limited. Through its counsel, the defendant filed a notice of appearance and a reply in that file.
[4] The plaintiff later filed a claim in this Court against the defendant in the instant file. The facts pleaded in this claim were similar to those pleaded in file number T-110-98.
[5] However, when the statement of claim was served on the defendant, it did not bear any file number, and the bailiff indicated in the affidavit of service that it concerned file number T-110-98.
[6] The defendant"s representative who received the documents, believing they were documents which were already in its counsel"s possession and knowing that the latter had already filed a notice of appearance and a reply in file number T-110-78, filed the documents away without notifying him.
[7] Counsel for the defendant reacted the same way when he later received a letter from counsel for the plaintiff.
[8] The affidavit enclosed with the plaintiff"s ex parte motion for a judgment by default simply noted the defendant"s failure to serve and file a defence to the claim in file number T-477-98.
[9] However, in a supplementary affidavit by the same person, filed before me in reply to this motion, it was admitted that the affidavit of service in the instant file bore an incorrect file number and that the claim itself bore no file number. This evidence was not before the judge who made the ex parte order.
[10] The bailiff is commissioned by a solicitor to serve pleadings and must obtain the information concerning that service for that solicitor. In the case at bar, the file number does not appear on the statement of claim. The bailiff wrote file number T-110-98 in his affidavit dated March 2, 1998, and it was received by the Registry with the same number. After checking, the Registry noticed that the statement of claim and the affidavit of service belonged in file number T-477-98 and made the necessary changes.
[11] The defendant had appeared and provided a reply in a related file, namely file number T-110-98, and had brought an action against the plaintiff in the Quebec Superior Court.
[12] The judge who ruled on the ex parte motion does not seem to have been notified of these circumstances, which attest to the fact that the defendant had demonstrated that it wished to challenge the claim.
[13] In my view, it would have been preferable if the defendant had received service of the motion for judgment by default.
[14] In these circumstances, I allow the motion to set aside the order awarding a judgment by default to the plaintiff and allow the defendant a period of 21 days from the date of this judgement to serve and file its defence in the present file.
[15] Costs will be in the cause.
J. Richard
Associate Chief Justice
Ottawa, Ontario
November 5, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-477-98
STYLE OF CAUSE: JOHN E. CANNING LTD. v. TRIPAP INC.
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: NOVEMBER 2, 1998
REASONS FOR ORDER OF ASSOCIATE CHIEF JUSTICE RICHARD
DATED: NOVEMBER 5, 1998
APPEARANCES:
JUAN MANZANO FOR THE PLAINTIFF
PATRICE BOUDREAU FOR THE DEFENDANT
SOLICITORS OF RECORD:
FLYNN, RIVARD FOR THE PLAINTIFF
QUÉBEC, QUEBEC
JOLI-COEUR, LACASSE, FOR THE DEFENDANT
LEMIEUX, SIMARD
& ST-PIERRE
TROIS-RIVIÈRES, QUEBEC
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