Date: 19990617
Docket: T-2001-98
BETWEEN:
SCOTT PAPER LIMITED
Plaintiff
- and -
CONVERPRO INC.
Defendant
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] In this action the statement of claim was filed on October 20, 1998. It appears that settlement negotiations took place ending on January 27, 1999, when the plaintiff's solicitors refused the defendant's offer for settlement and requested a statement of defence.
[2] No statement of defence having been received the plaintiffs filed an ex parte motion for judgment in default of defence on Friday, April 30, 1999 in Toronto. On Monday, May 3, 1999 a notice of status review was sent from Ottawa before the motion for default judgment reached my desk. Because the notice of status review might indicate to the defendant that it should have input into the matter of judgment, I arranged for show cause order to be sent to the defendant on May 11, 1999.
[3] Before the show cause order was sent the plaintiff responded to the notice of status review on May 7, 1999 and the defendant's purported to serve a statement of defence on the plaintiff's solicitor on May 10, 1999.
[4] On May 17, 1999 defendant's solicitors replied to the show cause order and motion for default judgment. The plaintiff then made written submissions with respect to the show cause order and the motion for default judgment on June 1, 1999. The defendant replied on June 2, 1999.
[5] The only reason I can deduce for the failure to file a defence is that there had been negotiations and the plaintiff only asked once for a defence after the negotiations ceased, thus, I suppose implying that the defendant was acquiescing to an extension of time. That of course cannot be. The plaintiff could not, as late as the end of January, directly grant an extension of time a fortiori it could not impliedly do so. Under the former Rules the defendant could file a defence up until an application had been made for default judgment, which was held to mean until a motion was before the Court. As a result, if a defence was tendered before the motion was in Court the motion would be dismissed. That automatic extension of time for filing of defence has been removed from the Rules. Now leave of the Court must be sought to file a defence late.
[6] Under the previous Rules, where leave was sought to file a pleading, unless there was consent the Court would peruse the pleading with the aid of counsel to ensure that the pleading was not one which could be struck out in whole or in part. Here, no pleading is tendered. I do not propose to extend time to file a pleading I have not seen. The motion to extend time to file a defence is dismissed with leave to reapply within thirty (30) days.
[7] Because the possibility of a defence arose before the motion for default judgment was before the Court, that motion is adjourned to be considered immediately after any motion for leave to file a defence, and if no such motion is filed within thirty (30) days, the motion for default judgment may be brought on ex parte.
[8] The status review and show cause matters are adjourned to be disposed of after the motion for default judgment is disposed of.
[9] The leave motion may be set for a vacation motion day, if necessary. If there is an oral leave motion, the motion for default judgment and the status review matters may be spoken to orally.
[10] The costs of these proceedings, so far, are to the plaintiff in any event of the cause, and may be fixed at any hearing of a motion for leave, or in the event of default judgment, may be assessed at the top end of Column III.
ORDER
1. The motion for leave to file a defence is dismissed, with leave to reapply within thirty (30) days.
2. The motion for default judgment is adjourned to be disposed of following any motion for leave if one is filed and failing such filing may be brought on ex parte thirty-one (31) days from today.
3. The status review and the show cause order are adjourned to be disposed of immediately after the motion for default judgment is disposed of.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
June 17, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2001-98
| STYLE OF CAUSE: SCOTT PAPER LIMITED |
- and -
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: THURSDAY, JUNE 17, 1999
SOLICITORS OF RECORD: Gowling, Strathy & Henderson
Barristers & Solicitors
Suite 4900, Commerce Court West
Toronto, Ontario
M5J 1J3
For the Plaintiff
Blake, Cassels & Graydon
Barristers & Solicitors
Box 25, Commerce Court West
Toronto, Ontario
M5L 1A9
For the Defendant
FEDERAL COURT OF CANADA
Date: 19990617
Docket: T-2001-98
Between:
Plaintiff
- and -
Defendant
REASONS FOR ORDER
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