Date: 20051221
Docket: T-1547-05
Citation: 2005 FC 1721
BETWEEN:
NIKE CANADA LTD. AND
NIKE INTERNATIONAL LTD.
Plaintiffs
- and -
MONTEX INTERNATIONAL INC.,
YONG XIANG CAO and
C.N.T. INTERNATIONAL INC.
formerly identified as
JANE DOE ET AL. IN ACTION T-441-05
Defendants
REASONS FOR ORDER
PINARD J.:
[1] This is an appeal by the defendants from a discretionary decision dismissing their motion for an extension of time to serve and file a Statement of Defence, a decision that was made by Prothonotary Morneau on November 3, 2005. As the question raised is vital to the "final issue" in the case (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at 454 (C.A.)), the Court must conduct a de novo review of the merits of the impugned decision and exercise its own discretion.
[2] However, as appears from the defendants' Motion Record in Appeal, they did not file (a) any of the underlying materials; (b) the November 3, 2005 Order of the Prothonotary; nor (c) any affidavit, and through their arguments they have attempted to introduce fresh facts not before the Prothonotary. Thus, the defendants' motion record is not in compliance with the requirements of Rule 364 of the Federal Courts Rules, 1998, SOR/98-106, and, therefore, must be struck out. This is, in itself, sufficient to dismiss the defendants' motion.
[3] In any event, upon hearing counsel for the parties and upon reviewing the record, I would exercise my own discretion in this matter exactly as the Prothonotary exercised his when denying the defendants' requested extension of time for the following reasons:
CONSIDERING that the Court, upon a review of all the motion records filed by the parties, is more than satisfied that the Defendants, and especially the Defendant Yong Xiang Cao, understood very well at all relevant times, including from August 18, 2005, all conversations and legal documents emanating from the Plaintiffs;
CONSIDERING that even if one accepts the affidavit evidence included inappropriately by the Defendants in their motion record in reply under Rule 369(3) when same evidence ought to have been included in the first place in their motion record under Rule 369(1), it remains that the Defendants have failed to proffer any proposed Statement of Defence or allege any reasonable defence in the motion material;
CONSIDERING that the Defendants are seeking to extend the time for filing their Statement of Defence to a date as of yet unknown but referred to as within thirty (30) days of the holding of an Examination before Pleas of the Plaintiffs;
CONSIDERING that the Defendants are seeking to extend the time for filing their Statement of Defence to a date as of yet unknown but referred to as within thirty (30) days of the holding of an Examination before Pleas of the Plaintiffs;
CONSIDERING that the test for deciding whether to grant extensions of time to file is set out in Canada (A.G.) v. Hennelly (1999), 244 N.R. 399 (hereinafter Hennelly) where MacDonald J.A. stated:
The proper test is whether the applicant has demonstrated
1. a continuing intention to pursue his or her application;
2. that the application has some merits;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
CONSIDERING that I am satisfied that three of the criteria established by the Federal Court of Appeal in Hennelly, namely a continuing intention to pursue their defence, that the defence has some merit, and the presence of a reasonable explanation for the delay, have not been met under the present circumstances;
CONSIDERING that even if one was to assume that criteria 3 and even 4 found in Hennelly are present, they have not been evidenced by the Defendants in a sufficient manner so as to flip on balance the scale in favour of the Defendants;
[4] Consequently, the defendants' motion appealing Prothonotary Morneau's decision dated November 3, 2005, is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
December 21, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1547-05
STYLE OF CAUSE: NIKE CANADA LTD. AND NIKE INTERNATIONAL LTD. v. MONTEX INTERNATIONAL INC., YONG XIANG CAO and C.N.T. INTERNATIONAL INC. formerly identified as JANE DOE ET AL. IN ACTION T-441-05
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 12, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATED: December 21, 2005
APPEARANCES:
Daniel Ovadia FOR THE PLAINTIFFS
Ning Yu FOR THE DEFENDANTS
SOLICITORS OF RECORD:
Daniel Ovadia as agent for FOR THE PLAINTIFFS
Kestenberg Siegal Lipkus LLP
Toronto, Ontario
Ning Yu FOR THE DEFENDANTS
Montréal, Quebec
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