Date: 20010907
Docket: T-163-01
Neutral citation: 2001 FCT 1000
Toronto, Ontario, Friday the 7th day of September, 2001.
PRESENT: Peter A.K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
L.S. ENTERTAINMENT GROUP INC.
Plaintiff
-and-
KALOS VISION LTD. and KALOS LTD.
Defendants
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] This motion for an extension of time within which to file a defence might not have arisen had counsel been aware of the emphasis placed on timeliness by the Rules and practice of this Court.
[2] My understanding is that in May the Plaintiff was willing to consent to a motion for an extension of time until June 12th, 2001 because settlement had been attempted. A copy of the defence was served June 14th, 2001. The Defendants sought the Plaintiff's consent to an order extending the time. By June 28th, 2001, the first motion for an extension of time was filed. It was not opposed however, the Registry referred the document to me under Rule 72 because there were no written representations. I note in an addition that the motion was supported by the solicitor's own affidavit and ordered the document returned. It appears this was done on July 20th, 2001. A motion record with an Amended Notice of Motion were filed August 15th, 2001 more than a three week delay for which no excuse has been tendered.
[3] I also note that the Plaintiff's counsel indicated that any consent he might give would be contingent on the Defendant acting promptly, which it does not appear has happened. The Plaintiff may have been willing to see the time for filing a defence extended to June, but Plaintiff's consent would not necessarily have resulted in an extension which is in the discretion of the Court. However, the fact that the Plaintiff was willing to consent, or not oppose in June, reveals there was no significant prejudice at that time. Within two days the Plaintiff's counsel had a copy of the defence and counterclaim, I therefore conclude, there would not be significant prejudice to the Plaintiff if an extension were granted.
[4] As Defendant's counsel points out by filing a copy of the intended defence he has shown an arguable defence. I have considered the propriety of filing a document concerning which leave is sought and note that a least in this case any harm could be overcome by the Court ordering it returned when refusing the leave.
[5] I do not propose to validate the late service of the statement of defence and counterclaim so that the Plaintiff may have a date from which to measure the filing of a defence to counterclaim and any reply should a defence and counterclaim be filed.
[6] I intend to allow one week from the date my order is telephoned out or sent by facsimile to the parties for serving and filing the statement of defence and counterclaim and to make such time limit peremptory.
ORDER
1. The Plaintiff shall have one week from the day this order is transmitted to his counsel by telephone or facsimile transmission to re-serve and file the statement of defence and counterclaim. This time limit is peremptory.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
September 7, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-163-01
STYLE OF CAUSE: L.S. ENTERTAINMENT GROUP INC.
Plaintiff
-and-
KALOS VISION LTD. and KALOS LTD.
Defendants
CONSIDERED AT TORONTO, PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES 1998.
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: FRIDAY, SEPTEMBER 7, 2001
WRITTEN SUBMISSIONS BY:Mr. Gary M. McCallum
For the Plaintiff
Mr. Arnold B. Schwisberg
For the Defendants
SOLICITORS OF RECORD: WEISDORF WAUD & MCCALLUM: ASSOCIATES
Barristers & Solicitors
121 Richmond Street West
Suite 1000
Toronto, Ontario
M5H 2K1
For the Plaintiff
ARNOLD B. SCHWISBERG
Barrister & Solicitor
1595 - 16th Avenue
Richmond Hill, Ontario
L4B 3N9
For the Defendants
FEDERAL COURT OF CANADA
Date: 20010907
Docket: T-163-01
Between:
L.S. ENTERTAINMENT GROUP INC.
Plaintiff
-and-
KALOS VISION LTD. and KALOS
LTD.
Defendants
REASONS FOR ORDER
AND ORDER
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