Sunbeam Products Inc. v. Mister Coffee & Services Inc., 2002 FCT 139

Date: 20020206

Docket: T-1182-95

Neutral Citation: 2002 FCT 139

BETWEEN:

SUNBEAM PRODUCTS INC.

Plaintiff

(Defendant by Counterclaim)

-and-

MISTER COFFEE & SERVICES INC.

Defendant

(Plaintiff by Counterclaim)

                                       REASONS FOR ORDER AND ORDER

HENEGHAN J.

[1]                 Mister Coffee & Services Inc. (the "Defendant") brought two motions pursuant to the Federal Court Rules, 1998 (the "Rules"). The first, pursuant to Rule 51 of the Rules, is an appeal against the Order of Prothonotary Lafrenière made on February 26, 2001, and the second, pursuant to Rule 416, seeks an Order for security for costs.

[2]                 In reply, Signature Brands, Inc., now Sunbeam Products Inc. (the "Plaintiff") moved to strike the Affidavit of Shannon L. Neally sworn March 8, 2001 and for an Order that the hearing of the Defendant's appeal be conducted in camera and that all documents relating to that motion, including pleadings, affidavits and written submissions, be sealed.

[3]                 Finally, on the hearing of these motions, the parties consented to amending the corporate name of the Plaintiff from "Signature Brands Inc." to "Sunbeam Products Inc.".

[4]                 On April 2, 2001, the Plaintiff's motion for confidentiality was granted and the hearing of the appeal proceeded in camera. As well, on April 2, 2001, an oral Order was made to strike the Affidavit of Shannon L. Neally. The two matters outstanding relate to the Defendant's appeal and motion for security for costs.

[5]                 In light of the confidentiality order and in camera hearing made on April 2, 2001 no reference will be made to the underlying facts in this matter. In my opinion, the Defendant's appeal from the Order of Prothonotary Lafrenière must be dismissed.

[6]                 The order in question provides as follows:

THIS MOTION, made by the Plaintiff for an order setting aside or varying the Order of 4 October 2000, and, pursuant to Rule 385 an Order fixing the time for completion of certain pre-trial steps in the proceeding, was heard this day at Toronto, Ontario;

ON READING the Affidavits of Elizabeth P. Courtney and Susan Daly, and the Plaintiff's Written Representations, filed, upon hearing counsel for the parties and refusing leave to the late filing of the Defendant's Responding Motion Record and Written Representations, by reason of inclusion and reference to information subject to confidentiality under Rule 388.

IT IS HEREBY ORDERED THAT:

1. The dispute resolution conference held on 13 December 2000 is hereby terminated.

[7]                 In my opinion, this Order was made by Prothonotary Lafrenière in the exercise of the authority conferred on him pursuant to the Federal Court Act, R.S., c. 10 (2nd Supp.), section 12(3). That section provides as follows:

[8]                 The jurisdiction of a prothonotary is set out in Rule 50 of the Rules. That rule authorizes a prothonotary to do all things except those matters specifically excluded. It is clear that a prothonotary can participate in the case management process; see Rule 50(1)(g).

[9]                 A prothonotary is a member of the Federal Court pursuant to the definition of "Court" contained in Rule 2 of the Rules. Rule 47(1) grants discretionary power to the court to act on its own initiative or on motion. That discretionary power is limited by Rule 50(2) in those instances where a notice of motion is specifically required. That is not the case here.

[10]            The dispute resolution process is an aspect of case management, pursuant to Part 9 of the Rules, particularly Rule 386. In my opinion, dispute resolution and case management will generally require the exercise of discretion of the judge or prothonotary involved in these processes. Indeed, the absence of any guidelines governing the procedures of case management and dispute resolution in the Rules supports my opinion in this regard.

[11]            It is well established that upon the appeal of a discretionary order made by a prothonotary in the exercise of his discretion, that order will not be disturbed unless it is apparent that the prothonotary has improperly exercised his discretion; see Canada v. Aqua Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.).

[12]            In my opinion, that an order made by a prothonotary in the context of case management, including the termination of a dispute resolution conference, is a discretionary order which does not impact on an issue vital to final disposition of the action. As such, it does not attract the de novo standard of review; see James River Corp. of Virginia v. Hallmark Cards, Inc. (1997), 72 C.P.R. (3d) 157 (F.C.T.D.) at page 160 where Justice Reed said:

Questions that are vital to the final issues of a case are, for example, the entering of default judgment, a decision not to allow an amendment to pleadings, a decision to add additional defendants and thereby potentially reduce the liability of the existing defendant, or a decision on a motion for dismissal for want of prosecution. None of the questions raised by the present appeals with respect to the answering of questions on discovery can be characterized as vital to the final issues of the case.    [Footnotes omitted]

[13]            I am not persuaded that the prothonotary acted beyond his jurisdiction or considered irrelevant matters, or otherwise improperly exercised his discretion. For these reasons, the appeal against his Order of February 26, 2001 is dismissed.

[14]            As for the Defendant's motion pursuant to Rule 416 that the Plaintiff post security for costs, I am not satisfied that there is sufficient evidence to grant such an order. That motion is dismissed, with leave to the Defendant to revisit the issue, if necessary, in the future.

[15]            I am not persuaded that the Defendant should have brought this appeal against the Order of the Prothonotary dated February 26, 2001. In the exercise of my discretion pursuant to Rule 400 of the Rules, I find that this is an appropriate case for the award of costs to the Plaintiff, to be taxed at the high end of Column IV, Tariff B, such costs to be payable in any event of the cause.

[16]            Since I have dismissed the Defendant's motion for security for costs, as outlined above, the Plaintiff shall have its costs, on the ordinary scale, in any event of the cause.

                                                  ORDER

1.          The Defendant's appeal from the Order of Prothonotary Lafrenière made February 26, 2001 is dismissed, with costs to the Plaintiff at the high end of Column IV, Tariff B, such costs to be payable in any event of the cause.

2.          The Defendant's motion for security for costs is dismissed without prejudice to seeking such order in the future, costs on this unsuccessful motion payable to the Plaintiff on the ordinary scale in any event of the cause.

                                                                                                      J.F.C.C.                      

OTTAWA, Ontario

February 6 , 2002