Date: 19990604
Docket: T-1538-98
BETWEEN:
WIC PREMIUM TELEVISION LTD.
Plaintiff
-and-
GENERAL INSTRUMENT CORPORATION, NEXT LEVEL SYSTEMS, INC., NEXT LEVEL SYSTEMS OF DELAWARE INC., NEXT LEVEL SYSTEMS (CANADA) INC., SHOWTIME NETWORKS, INC., SHOWTIME SATELLITE NETWORKS INC., SHOWTIME SATELLITE NETWORKS RETAIL SALES AND MARKETING, INC., ACCESS CONTROL CENTRE, INC. DBS SERVICES, INC., HOME BOX OFFICE, INC., WARNER COMMUNICATIONS, INC., JOHN DOE, ECHOSTAR COMMUNICATIONS CORPORATION DISH LTD., ECHOSPHERE CORPORATION, UNITED STATES SATELLITE BROADCASTING COMPANY, INC., CORMAN PARK SATELLITE LTD., WARREN SUPPLY COMPANY, PROGRAMMERS CLEARING HOUSE, INC., RALPH WARREN, RONALD WARREN, RALPH WARREN AND RONALD WARREN carrying on business as 'PROGRAMMERS CLEARING HOUSE', and as 'WARREN ACTIVATIONS' and as 'WARREN RADIO & TELEVISION', and as 'ENTERTAINMENT DIRECT', WARREN ELECTRONICS SUPPLY COMPANY carrying on business as 'BUILDERS EXPRESS', 4-12 ELECTRONICS CORPORATION, FREEDOM SATELLITE CORPORATION, CHRISTOPHER NELSON personally and carrying on business as 'SKYLIGHT HOME SATELLITE THEATER', CHRISTIAN NELSON, SHELDON NELSON and VIACOM ENTERPRISES CANADA LIMITED
Defendants
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application brought on behalf of the plaintiff, on short notice, to stay this action. The plaintiff's motion was heard on Monday the 31st of May, 1999 at Toronto, a day that had been set aside for the hearing of three other motions in the same matter brought on behalf of UNITED STATES SATELLITE BROADCASTING COMPANY ('USSB') and two groups of defendants commonly referred to as the 'ECHOSTAR defendants' and the 'WARREN defendants'. The motions brought by USSB, the ECHOSTAR defendants and the WARREN defendants were filed in late October and early November 1998 and challenged the jurisdiction of this Court to entertain this action as against those defendants.
[2] An action on the same facts as are alleged in this action has been brought by the plaintiff in the Court of Queen's bench of Alberta against many of the same defendants including USSB, the ECHOSTAR defendants and the WARREN defendants. In proceedings before the Alberta Court on the 19th of February, 1999, the following exchanges took place between the Honourable Mr. Justice Clarke, apparently the Case Management Judge on the action in the Alberta Court, and counsel for the plaintiff:
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THE COURT: But is not the difference between the two [The action in the Alberta Court and this Court] the relief that you can get? |
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MR. McKENZIE: Yes, the difference between the two is -- |
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THE COURT: The facts are the same. It is the relief -- |
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MR. McKENZIE: The facts are the same, I agree, -- |
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MR. McKENZIE: -- but the relief in this Court can be damages, -- |
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MR. McKENZIE: -- can be an accounting which, as you know, is a very substantial claim -- |
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MR. McKENZIE: -- in reading this. |
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MR. McKENZIE: So there is a very broad set of causes of action which cannot be brought in the Federal Court. |
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MR. McKENZIE: ... It's also possible that Justice Gibson will rule that other Defendants are not properly before that Court in his Court's limited jurisdiction under the Radiocommunication Act and the Copyright Act, which is the only two statutes that he gets the ability to adjudicate civil actions between private individuals. In this Court again it's broader. The tort of conspiracy is linked -- and it's an intentional tort -- is linked not only to those Defendants that Justice Gibson might elect not to allow to be in his Court, but is also linked to the contractual and negligent misrepresentation issue that exists in this Court with respect to H.B.O., who have attorned to the jurisdiction of this Court already. |
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So I hope that answers -- well, the question that you have asked me, that the issues are identical. They are not, because of the broader brush, the broader causes of action here, the logic is that we should start here. |
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[3] Mr. Justice Clarke heard motions on the 3rd and 4th of May, 1999, on behalf of USSB, the ECHOSTAR defendants and the WARREN defendants to set aside service ex juris and to strike those defendants, motions equivalent to the motions that were scheduled to be heard before me in this Court on the 31st of May, 1999. On the 17th of May, 1999, Justice Clarke issued reasons1 indicating that he would dismiss the motions before him except with respect to two individual defendants. In those reasons, he wrote:
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[29] In July 1998 the Plaintiff commenced a companion action against the Defendants in this action including the Applicant Defendants. The action was commenced in Federal Court in order to obtain injunctions that would be applicable in all parts of the Plaintiff's Territory, not just in Alberta. The claim [in the Federal Court] is limited to injunctive relief although many of the causes of action as plead in this action are pled in the Federal Court action. The Plaintiff says that the action in Alberta is more broadly based in terms of relief sought because the Alberta Court is not limited by being a statutory court. In particular, the significant damages including damages such as punitive, aggravated and exemplary damages are claimed in this action which cannot be claimed in the Federal Court action. The Plaintiff advised this Court that it was its intention to proceed with the Alberta action and take the matter to trial in Alberta. The Plaintiff would be asking the Federal Court to hold the federal action in abeyance pending a decision of this Court as to whether or not injunctive relief would be granted in the circumstances of this case before seeking similar relief from the Federal Court. |
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[30] There are concurrent applications by these Applicant Defendants and other Defendants in the Federal Court seeking to see aside service in that Court. Given the Plaintiff's stated intention as to where it wanted to proceed with the litigation and having regard to the background of the two actions set out above it is appropriate in my view for this Court to take jurisdiction in this action to ensure that all of the issues and all of the potential relief are litigated in one action in one location. |
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[4] Thus, the stage was set for the Plaintiff's application giving rise to these reasons.
[5] This Court's jurisdiction to stay proceedings before it in circumstances such as those before me is found in subsection 50(1) of the Federal Court Act2 which reads as follows:
| 50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
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| 50. (1) La Cour a le pouvoir discrétionnaire de suspendre les procédures dans toute affaire_:
a) au motif que la demande est en instance devant un autre tribunal;
b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.
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[6] Counsel for the ECHOSTAR defendants and the WARREN defendants essentially took no position on the plaintiff's application to stay, expressing concern about attorning to the jurisdiction of this Court. |
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[7] Counsel for USSB, while being very careful to preserve his client"s position against attorning to jurisdiction, urged that, while it might be entirely appropriate to stay this action pending the outcome of the Alberta action, the jurisdictional motion on behalf of his client, filed many months ago, should first be dealt with to minimize unfairness to USSB flowing out of the way that this matter and the Alberta action have proceeded to this point and time, to minimize prejudice flowing from the fact that USSB, as a public company, would be required to publicly report the outstanding litigation against it in this Court when its position of its jurisdictional motion might finally settle that matter, and that, on behalf of his client, he had been put to the expense of preparation for the jurisdictional motion and only advised, very late in the day, that the plaintiff would be seeking a stay prior to the determination of the jurisdictional motion. |
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[8] I take no position on the issue of alleged unfairness. It is clear that counsel for USSB and counsel for the plaintiff have very different views on the issue of "fairness" in the way in which the two actions have unfolded. |
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[9] I am satisfied that the prejudice that might flow to USSB from the granting |
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of a stay of the action in this Court is minimal given that the Alberta action will proceed against USSB with potential implications in terms of relief far broader than those in this Court, save for the broader geographical reach of an injunction that might possibly be issued by this Court. |
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[10] I am satisfied that the expense that has undoubtably been incurred by reason of the late notice of this stay motion is compensable in costs. |
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[11] In Eli Lilly & Co. v. Novopharm Ltd.3 Mr. Justice Forget of the Ontario Court, General Division, wrote at page 432: |
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It is very apparent to me that the Ontario Court is being asked to decide on the same factual circumstances, the same basic issue as the Federal Court, namely, whether or not the compulsory licence is terminated. It is to be noted that, in addition, if the action is decided against Eli Lilly, the Federal Court will then deal with the question whether or not an NOC should be issued to Novopharm. Even though there is concurrent jurisdiction to grant this relief, it was not requested in the Ontario Court action. Therefore, the court which may deal more comprehensively with all aspects of the action would be the Trial Division of the Federal Court of Canada. |
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Mr. Justice Forget continued at page 433: |
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I am accordingly of the view that the Federal Court of Canada does have the jurisdiction to grant a declaration that a compulsory licence is terminated as does the Ontario Court. |
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Having so found, the Court must now determine in whose jurisdiction should the action proceed. It is trite law that a multiplicity of proceedings is to be avoided wherever possible. In the case of Shell Canada Ltd. v. St-Lawrence Seaway Authority, ... 58 O.R. (2d) 437 (H.C.J.), the Court held that where plaintiffs sued in both the Federal Court and the Supreme Court of Ontario, the Ontario Supreme Court stayed the Ontario actions finding that this would avoid the risk of inconsistent findings, excessive costs and duplication of effort. [one citation omitted] |
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[12] While the criteria specified in subsection 50(1) of the Federal Court Act are proceedings in another court or jurisdiction and the interest of justice, I am satisfied that those criteria comprehend avoidance of risk of inconsistent finding,4 excessive costs in duplication of effort. Apart from the fact that it is the Alberta action that is broader in scope than is this action, rather than the reverse, I am satisfied that the words of Mr. Justice Forget are entirely applicable on this application. |
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[13] In the result, at the close of the hearing of the application to stay, I indicated that the action in this Court would be stayed pending further order of this Court and an Order to that effect has issued. Barring circumstances such as the issuance of an interlocutory injunction in the Alberta proceedings, I would assume that a further order of this Court would not issue until after the proceedings in the Alberta Court have been finally determined. |
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[14] Based on considerations referred to earlier in these reasons, I have ordered |
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that costs of the application to stay be payable by the plaintiff to USSB forthwith and in any event of the cause. No other order as to costs was made. |
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1 Action No. 9703-16746, 17 May, 1999, (Alta. Ct. of Queen"s Bench), (not reported).
2 R.S.C. 1985, c.F-7 (as amended).
3 (1994), 53 C.P.R.(3d) 428.
4 See COMPULIFE SOFTWARE INC. v. COMPUOFFICE SOFTWARE INC. (1997), 77 C.P.R. (3d) 451 (F.C.T.D.).
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