Date: 20031003
Docket: T-1821-02
Citation: 2003 FC 1152
Montréal, Quebec, October 3, 2003
PRESENT: MR. RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
KRAFT CANADA INC.
KRAFT FOODS SCHWEIZ AG
and
KRAFT FOODS BELGIUM SA
Applicants
and
EURO EXCELLENCE INC.
Respondent
REASONS FOR ORDER AND ORDER
[1] The case at bar concerns a motion by the respondent under Rule 369 of the Federal Court Rules, 1998, seeking essentially:
1. the issuing of an order authorizing this motion to be made in writing;
2. the issuing of an order authorizing the respondent to file a supplementary record including responses to undertakings signed by the representative of the co-applicant Kraft Canada Inc., Marilyn Miller, at her cross-examination on July 2, 2003;
3. an order amending paragraph 4 of the document titled "Requisition for Hearing" to allow five days of hearing, rather than the two initially agreed upon.
[2] On the first point above, I have considered the parties' written submissions and I feel that I can dispose of the motion at bar without an oral hearing of the parties.
[3] Since point 2 above was not challenged by the applicants, the respondent is authorized to serve and file the said supplementary record within five days of this order.
[4] The remedy sought in point 3 above is denied.
[5] The respondent submitted no evidence to indicate why it should not be limited by the parameters which it agreed to in its application for a hearing filed on July 8, 2003. It appeared that this application was fully discussed between counsel. The fact that it preceded the preparation of the respondent's record does not preclude the presumption, first, that the respondent and its counsel are presumed to be fully familiar with the points they intended to put forward on the merits, and second, that these matters were taken into account in assessing the length of the hearing. That period is already set down for two days, which is itself unusual for an application for judicial review.
[6] Additionally, it is quite surprising that the respondent now wishes to arrange matters so it can challenge the constitutionality of paragraph 27(2)(e) of the Copyright Act, R.S.C. 1985, c. C-42 ("the Act"). It appears that it is this addition which would essentially increase the length of the hearing on the merits, extending from two to five days.
[7] As the applicants pointed out, the parties - and hence the respondent - clearly noted in their application for a hearing that no notice of a constitutional question was contemplated.
[8] The respondent's motion record contains no evidence that will now justify this major reorientation. In fact, because of this absence of supporting evidence the Court cannot rule out the possibility that this argument about constitutionality was in the respondent's mind at the time the latter filed its motion record, which led to the decision of this Court on January 20, 2003. As mentioned earlier, the application for a hearing makes no reference to any constitutional question. It must therefore be presumed from the present standpoint that the respondent has decided in the meantime it did not want to take that route.
[9] Finally, providing at this point that the hearing on the merits would be five rather than two days would of necessity appreciably delay the hearing on the merits, and would be contrary to the objective sought by subsection 34(4) of the Act, namely a summary approach.
[10] For these reasons, the Court dismisses the respondent's request that the length of the hearing now be considered to be five days.
[11] As to costs on the instant motion, although the respondent was successful on certain points those points were essentially minor ones. Consequently, costs on this motion are awarded to the applicants.
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"Richard Morneau"
Prothonotary
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT
Date: 20031003
Docket: T-1821-02
Between:
KRAFT CANADA INC.
KRAFT FOODS SCHWEIZ AG
and
KRAFT FOODS BELGIUM SA
Applicants
and
EURO EXCELLENCE INC.
Respondent
REASONS FOR ORDER
AND ORDER
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1821-02
STYLE OF CAUSE: KRAFT CANADA INC.
KRAFT FOODS SCHWEIZ AG and KRAFT FOODS BELGIUM SA
Applicants
and
EURO EXCELLENCE INC.
Respondent
WRITTEN MOTION CONSIDERED IN MONTRÉAL WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: October 3, 2003
WRITTEN SUBMISSIONS:
Arthur B. Renaud for the applicants
Timothy M. Lowman
François Boscher for the respondent
SOLICITORS OF RECORD:
Sim, Hughes, Ashton & McKay for the applicants
Toronto, Ontario
François Boscher for the respondent
Éric Franchi
Pierre-Emmanuel Moyse
Montréal, Quebec
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