Lloyd Triestino Di Navigazione S.P.A. v. Berry (Fortune Group), 2007 FC 362

Date: 20070404

Docket: T-2145-05

Citation: 2007 FC 362

Toronto, Ontario, April 4, 2007

PRESENT:     The Honourable Mr. Justice Hughes

BETWEEN:

LLOYD TRIESTINO DI NAVIGAZIONE S.P.A.

Plaintiff

and

CHRISTINA BERRY carrying on business as FORTUNE GROUP

and

Defendant

PLASTIC WASTE INTERNATIONAL SOLUTIONS LTD.

Third Party

REASONS FOR ORDER AND ORDER

[1]               This is a motion by the Defendant, Christina Berry carrying on business as Fortune Group to dismiss the action and for such other relief as may be just.

[2]               The Defendant is now self-represented, her former solicitors having been permitted by an Order of the Court to withdraw. The Defendant’s motion is, perhaps understandably, confused but appears to be a challenge to an order of Prothonotary Milczynski permitting the case to continue as specially managed after a status review had been made. The Defendant argues that the registry improperly refused to accept for filing materials submitted by the Defendant which she says should have been before Prothonotary Milczynski before she made her Order.

[3]               The Defendant submits her own affidavit in support of this motion indicating that she attended at the Registry Office on March 8, 2007 last material she submitted was not accepted for filing. That material however appears to have been directed to her former solicitors’ motion to be removed from the record and not to the Status Review.

[4]               Defendant, in her written argument paragraph 17 argues that Prothonotary Milczynski may have been influenced by the material filed by her former solicitors asking to be removed from the record when she made her Order upon the status review. She argues that the Prothonotary did not provide reasons as to her Order nor give sufficient regard to the facts and law that the Defendant raised.

[5]               The present motion is brought as an original matter and not as an appeal form the Order of Prothonotary Milczynski. As such, there is insufficient evidence on the record as would support the dismissal of the action. Even if the matter had been brought as an appeal from Prothonotary Milczynski, the law is clear that Orders of this kind should not be reversed unless the Prothonotary proceeded wrongly in law or on a fundamental misapprehension of the evidence.

[6]               I find that the Prothonotary did not comment any such error. The motion is dismissed with costs to the Plaintiff in the cause.

ORDER

For the Reasons herein;

THIS COURT ORDERS that:

1.                  The motion is dismissed.

2.                  Costs to the Plaintiff in the cause.

“Roger T. Hughes”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                      T-2145-05

STYLE OF CAUSE:                                      LLOYD TRIESTINO DI NAVIGAZIONE S.P.A.

v. CHRISTINA BERRY carrying on business as

FORTUNE GROUP v. PLASTIC WASTE INTERNATIONAL SOLUTIONS LTD.

CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369

REASONS FOR ORDER

AND ORDER BY:                                        HUGHES J.

DATED:                                                         April 4, 2007                                      

WRITTEN REPRESENTATIONS BY:

Brent W. Mescall                                                         FOR THE PLAINTIFF

Christina Berry                                                 FOR THE DEFENDANT

            (on her own behalf)

SOLICITORS OF RECORD

BORDEN LADNER GERVAIS LLP

Toronto, Ontario                                                          FOR THE PLAINTIFF

CHRISTINA BERRY c.o.b.

FORTUNE GROUP

Burlington, Ontario                                                       FOR THE DEFENDANT

(on her own behalf)