A Lassonde Inc. v. Sun Pac Foods Ltd., 2002 FCT 47

                                                                                                                                            Date: 20020116

                                                                                                                                         Docket: T-393-98

Neutral citation: 2002 FCT 47

BETWEEN:

A. LASSONDE INC.

Plaintiff

(Defendant by counterclaim)

and

SUN PAC FOODS LIMITED

Defendant

(Plaintiff by counterclaim)

REASONS FOR ORDER

RICHARD MORNEAU, ESQ., PROTHONOTARY:

[1]         There are two motions before the Court in this case. The first is by the defendant, to obtain the striking out of amendments made by the plaintiff to its statement of claim following the filing by the plaintiff of an amended statement of claim dated February 28, 2000 (the amended statement of claim). The second motion is by the plaintiff, seeking leave to file the amended statement of claim should it be struck out in the context of the defendant's motion.

[2]         These two motions are the most recent ones in a trade-marks dispute dating back to March 1998 that has since been the subject of a series of tiresome interlocutory motions. One after the other, each of the parties has appeared in Court on motions that have almost invariably resulted in lengthy and acrimonious debates between counsel in addition to occupying a great deal of the Court's time both in analyzing the motions and the voluminous correspondence they have generated and in hearing the motions.

[3]         To all intents and purposes, it appears that at all relevant times no steps have been taken or progress achieved in this matter so far on the basis of a consent between the parties' respective counsel.

[4]         The result is that, almost four years after the filing of the statement of claim, we are still looking at the language of the written pleadings and settling -- which seems to be the next stage in the future -- the outcome of undertakings made or objections raised during the examinations for discovery held in May and November 1999. Once these difficulties have been settled, the parties propose to undertake a second round of examinations for discovery!

[5]         Some major direction is in order so that we can consider that the written pleadings between the parties are definitively ended, that the examinations for discovery that have already been held are completed and concluded in short order, and that the parties are finally directed toward the request for a pre-trial conference in a matter that is beginning to assume the trappings of a complex case. It seems clear in this regard that the Federal Court of Appeal recognizes that the person responsible for case management enjoys a fairly extensive discretion to get a case moving ahead; in Sawridge Band v. Canada, [2001] F.C.J. No. 1684, at paragraph 11, the Court adopts the following position expressed by the Alberta Court of Appeal:

We would take this opportunity to state the position of this Court on appeals from orders of case management judges. Case management judges must be given latitude to manage cases. This Court will interfere only in the clearest case of a misuse of judicial discretion. This approach was well stated by the Alberta Court of Appeal in Korte v. Deloitte, Haskins and Sells (1995), 36 Alta. L.R. (3d) 56, at 58, and is applicable in these appeals. We adopt these words as our own.

[...] This is a very complicated lawsuit. It is the subject of case management and has been since 1993. The orders made here are discretionary. We have said before, and we repeat, that case management judges in those complex matters must be given some "elbow room" to resolve endless interlocutory matters and to move these cases on to trial. In some cases, the case management judge will have to be innovative to avoid having the case bog down in a morass of technical matters. Only in the clearest cases of misuse of judicial discretion will we interfere. [...]

(See also the decision of Gibson J. in Microfibres Inc. v. Annabel Canada Inc. et al., 2001 FCT 1336, December 5, 2001.)

[6]         We should keep this approach in mind when looking at the motions under review.

Defendant's motion to strike out

[7]         The defendant's motion to strike out is aimed at the plaintiff's amended statement of claim filed on February 28, 2000. This statement of claim ended up in the case as a result of the following sequence of events.

[8]         On February 14, 2000, the Court heard a motion by the plaintiff for a decision in its favour on certain objections made by the defendants' counsel during the examination on May 6, 1999 of the defendant's representative, Ms. Lisanne Oneschuk.

[9]         In its decision of February 22, 2000, the Court ruled on the various objections submitted and also ruled, inter alia, that the plaintiff should serve and file on or before February 29, 2000 its amended statement of claim, which it had referred to in paragraph 8 of its memorandum filed November 29, 1999.

[10]       This memorandum of November 29, 1999 is the one produced by the plaintiff in support of its motion resulting in the decision of February 22, 2000.

[11]       Paragraph 8 of this memorandum stated:

[Translation] As the defendants' counsel have previously been informed, the plaintiff will opt for an accounting of profits the defendant has or will have unlawfully realized through this marketing. The plaintiff hereby undertakes to file and serve within fifteen (15) days of the presentation of this motion an amended statement of claim in which this option will be spelled out.

[12]       Since the decision of February 22, 2000 did not authorize the plaintiff to make any amendment other than the one allowed, i.e. the election in favour of the accounting of profits, the plaintiff of course had no reason to think -- especially in light of the belligerent atmosphere that already existed at the time -- that it could amend its statement of claim in order to make further additions thereto, additions (here we are basically talking about paragraphs and conclusions affecting the punitive damages) that it could have sought to include in its statement of claim much earlier by way of a motion or by stating them in the context of the hearing of February 14, 2000 so that the Court could authorize them in its decision of February 22, 2000. This was not done and that is why the decision of February 22, 2000 is limited to authorizing the election in favour of the accounting of the defendant's profits.

[13]       Furthermore, I do not think the plaintiff can consider that its announcement of amendments on November 29, 1999 was simply a response to some specific pressures from the adverse party in regard to some financial information, and that this announcement could not and should not have been addressed to any other amendment that might have been disclosed at that time and that accordingly might have been covered in the decision of February 22, 2000.

[14]       The plaintiff was not content with limiting itself momentarily to this amendment (the accounting of profits) through paragraph 19 of its amended statement of claim. It also chose to add at this rather late stage, and without authorization, a cause of action in punitive damages. This latter cause of action resulted -- as was foreseeable -- in strong protests by the defendant that culminated in the filing of its motion to strike out the amended statement of claim.

[15]       I intend to allow the latter motion in part, within the following parameters.

[16]       I intend to restore the parties to the state of the written proceedings as it should have been immediately following the decision of this Court of February 22, 2000, and without any invitation to the plaintiff to again file an amended statement of claim. To do this, I intend to order that:

1.          the amended statement of claim filed by the plaintiff on February 28, 2000 shall be struck out;

2.          for the purposes of this case, the plaintiff's statement of claim will be deemed to be the one that existed as of February 22, 2000 but for the purposes of paragraph 19 of the said statement of claim the plaintiff will be deemed to have opted for the accounting of the defendant's profits; and

3.          the parties' written pleadings will be definitively closed.

[17]       If I say that I am allowing the defendant's motion to strike out only in part, it is because the defendant, in its motion, seeks the striking out of aspects of the statement of claim that were present in this proceeding under the decision of February 22, 2000. If, in order to avoid further disputes between the parties, we freeze the written proceedings as of February 22, 2000, this situation should obtain for both parties and not only against the plaintiff.

[18]       In regard to the plaintiff's motion addressed to the amendments covered earlier, I think that notwithstanding the very generous principles found in such matters in Canderel Ltée v. Canada (1993), [1994] 1 F.C. 3 (C.A.) and Raymond Cardinal et al. v. Her Majesty the Queen, an unreported decision of the appeal division of this Court dated January 31, 1994, docket A-294-77 (per Heald, Décary and Linden JJ.A.), this motion ought to be dismissed since it seems to me imperative and of primary importance that the written pleadings be considered as closed from now on. The addition of the amendments sought by the plaintiff would surely serve only to encourage the defendant to want to amend its statement of defence at this point and continue with the examinations for discovery on these new aspects. These measures would surely produce a shower of motions in response. In that sense, I am of the opinion that irreparable damage would be done in terms of costs to both the defendant and the administration of justice if the plaintiff's motion to amend were allowed.

[19]       Furthermore, the allegations the plaintiff is seeking to include in regard to punitive damages refer to some out-of-court settlement discussions between the parties. In paragraph 17 of my decision of February 22, 2000, it was already decided that this topic should not be discussed during the examinations for discovery. Thus allowing amendments that refer to that topic is out of the question. Moreover, the only affidavit in support of the plaintiff's motion to amend consists of the affidavit not of the plaintiff's representative but of a student at law working for the law firm of solicitors representing the plaintiff. And what the affiant recounts is largely double hearsay in her case, which gives minimal weight to the evidence in support of the motion. So those are two additional reasons to dismiss the plaintiff's motion to amend.

[20]       The defendant's motion to strike out will therefore be allowed in part, as stipulated earlier, and the plaintiff's motion to amend will be dismissed, with an award of costs on both motions which I set at $3,000 payable forthwith to the defendant, given that the plaintiff is at the origin of both of these motions the result of which has been to further delay the progress of the case. Costs in a substantial amount are therefore called for.

[21]       In regard to the remaining stages to be completed in this case, here again of course the parties are unable to agree. I must decide, then, and to that end I find that notwithstanding the decisions of this Court of February 22, 2000 and April 24, 2001, there are still, apparently, some problems in regard to the parties' examinations for discovery.

[22]       In order to resolve these problems -- and to bring the examinations for discovery to an end -- it will be necessary to rule first on the plaintiff's motion filed November 28, 2001 (document no. 137) since it refers primarily to the decision of February 22, 2000. Since the plaintiff assured the Court that it could argue this motion in one hour, the plaintiff shall place this motion on the roll for a general motions sitting of this Court in Montréal within thirty (30) days of the order accompanying these reasons. The hearing on this motion will be limited to two (2) hours in which each party shall have a total of one hour in which to submit all of its arguments.

[23]       The decision disposing of this motion will stipulate the next stage to be completed in the case, likely a motion by the defendant seeking to force "Lassonde to provide answers to undertakings and answers to the questions ordered to be answered in the April 24, 2001 Reasons for Order and Order".

[24]       Order to go accordingly.

Richard Morneau

Prothonotary

MONTRÉAL, QUEBEC

January 16, 2002

Certified true translation

Suzanne M. Gauthier, trad. a., LL.L.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NO:                                      T-393-98

STYLE:                                                   A. LASSONDE INC.

Plaintiff

(Defendant by counterclaim)

and

SUN PAC FOODS LIMITED

Defendant

(Plaintiff by counterclaim)

PLACE OF HEARING:                      Montréal, Quebec

DATE OF HEARING:                         December 12, 2001

REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY

DATED:                                                January 16, 2002

APPEARANCES:

SOLICITORS OF RECORD:

Date: 20020116

                                              Docket: T-393-98

Montréal, Quebec, January 16, 2002

Present:          RICHARD MORNEAU, ESQ., PROTHONOTARY

BETWEEN:

A. LASSONDE INC.

Plaintiff

(Defendant by counterclaim)

and

SUN PAC FOODS LIMITED

Defendant

(Plaintiff by counterclaim)

ORDER

A.         The plaintiff's motion to amend is dismissed and the defendant's motion to strike out is allowed in part according to the following parameters, with an award of costs on both motions fixed at $3,000 payable forthwith to the defendant;

1.          the amended statement of claim filed by the plaintiff on February 28, 2000 is struck out;

2.          for the purposes of this case, the plaintiff's statement of claim is deemed to be the one that existed as of February 22, 2000 but for the purposes of paragraph 19 of the said statement of claim the plaintiff is deemed to have opted for the accounting of the defendant's profits; and

3.          the parties' written pleadings are now definitively closed.

B.          In regard to the remaining stages to be completed in this case, it is necessary to rule first on the plaintiff's motion filed November 28, 2001 (document no. 137) since it refers primarily to the decision of February 22, 2000. Since the plaintiff assured the Court that it could argue this motion in one hour, the plaintiff shall place this motion on the roll for a general motions sitting of this Court in Montréal within thirty (30) days of this order. The hearing on this motion will be limited to two (2) hours in which each party shall have a total of one hour in which to submit all of its arguments.

C.         The motions are otherwise dismissed.

Richard Morneau

Prothonotary

Certified true translation

Suzanne M. Gauthier, trad. a., LL.L.