Time Warner Entertainment Co. v. Doe, 2002 FCT 394

Date: 20020409

Docket: T-1057-99

Neutral Citation: 2002 FCT 394

Ottawa, Ontario, this 9^th day of April 2002

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

TIME WARNER ENTERTAINMENT COMPANY, L.P.

and WARNER COMMUNICATIONS INC.,

carrying on business in partnership as DC COMICS

Plaintiffs,

- and -

JANE DOE and JOHN DOE and PERSONS, NAMES UNKNOWN,

WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, PRODUCE,

PRINT, DISTRIBUTE, ADVERTISE, DISPLAY, STORE, SHIP OR DEAL IN UNAUTHORIZED OR COUNTERFEIT BATMAN CHARACTER MERCHANDISE AND THOSE PERSONS WHEN LISTED IN SCHEDULE "A"

Defendants.

REASONS FOR ORDER

Sheldon R. Rotman (123)

[1]    The Court has before it a motion for judgment on consent against the defendant Sheldon R. Rotman. The material filed in support of the motion includes Minutes of Settlement, as well as a form of consent to judgment both ostensibly signed by the defendant. The qualification "ostensibly" appears because no affidavit of execution is provided nor is there any positive averment under oath that the signature which appears on the documents is that of the defendant.

[2]    By the terms of the Minutes of Settlement, the defendant agrees to pay the plaintiffs the sum of $35,000 but if the defendant pays the sum of $7,500 upon execution of the Minutes of Settlement, the plaintiffs will waive payment of the balance of the $35,000. Later in the Minutes of Settlement, the defendant agrees that if he fails to comply with any of the terms of the Minutes of Settlement, the plaintiffs "shall be at liberty to obtain judgment in accordance with these Minutes of Settlement for $35,000 less the amount of any payment received, on account".

[3]    The form of consent order put before the Court contains the same provisions. And therein lies the problem. It is well established that only one final order will issue on a claim. See Carpenter Fishing Corp v. Canada [1998] 2 F.C. 548. The underlying rationale is that upon judgment being issued, the underlying cause of action merges in the judgment and will not support any further adjudication by the court except in terms of the judgment issued. This is so whether the judgment in question is issued after adjudication or upon consent. Prairie Hydraulic Equipment Ltd. v. Everest Equipment Inc. [1998] B.C.J. No. 1121.

[4]                 The plaintiffs cannot obtain a final judgment in which they reserve their right to apply for a further judgment in the event of non-compliance with the terms of the judgment. If the plaintiffs take out judgment, they are limited to enforcing the terms of the judgment. If they stand on their Minutes of Settlement, then they can sue on the settlement in the event of non-compliance.

[5]                 It may be that counsel for the plaintiffs can draft their judgment in terms that do not contemplate a further judgment but such judgment must be faithful to the terms of the defendant's consent.

CONSEQUENTLY, the motion for judgment on consent is dismissed with leave to reapply within 15 days, failing which this claim shall stand dismissed without further order.

        "J.D. Denis Pelletier"         

   Judge