Date: 20081208
Docket: T-64-08
Citation: 2008 FC 1351
Ottawa, Ontario,
December 8, 2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
HENRY NEUGEBAUER
Applicant
and
ANNA M. LABIENIEC
Respondent
REASONS FOR ORDER AND ORDER
[1]
This case
involves an application by Henry Neugebauer (the Applicant) to expunge a
Certificate of Registration of Copyright (Registration No. 1,639,825) issued by
the Canadian Intellectual Property Office on July 12, 2006 (the
Application). The Registration at issue concerns a literary work entitled Gesi
Puch (the Book) and identifies Anna M. Labieniec (the Respondent) and the Applicant
as the Book’s owners and authors. The
book is Mr. Neugebauer’s memoir of the Holocaust and of Germany’s occupation of Poland during World War II. It is written in
Polish.
[2]
This
hearing was to be a default proceeding. However, the self-represented Respondent
appeared and requested an adjournment based on the fact that she had not
received the Applicant’s application record. She had had no opportunity to
respond and apparently wished to do so.
[3]
The Respondent
was served with the Notice of Application (the Notice) on January 18,
2008. It read in part as follows:
IF YOU WISH TO OPPOSE THIS APPLICATION,
to receive notice of any step in the application or to be served with any
documents in the application, you on a solicitor acting for you must prepare a
notice of appearance in Form 305 prescribed by the Federal Courts Rules and
serve it on the applicant’s solicitor or where the applicant is self-represented,
on the applicant, WITHIN 10 DAYS after being served with this notice of
application.
[4]
Unfortunately,
neither the Court’s Notice of Application nor Form 305 mentions that a Notice
of Appearance must be filed with the Court. As well, although Form 305 refers
to Rule 305, it does not suggest that the Rule should be read for further
information. In my view, a respondent would fairly assume, based on the above language,
that timely service of a Notice of Appearance would entitle him or her to notice
of subsequent proceedings.
[5]
In this
case, relying on the Notice, the Respondent prepared the Notice of Appearance
(the Appearance) but did not serve it on counsel for the Applicant until
January 31, 2008. This meant that it was late. Further, it was never filed.
For this reason, the only pre-hearing document the Applicant received was the
Court’s order of July 29, 2008, setting the matter down for hearing. She
also received a phone call from the Registry in which she confirmed that she
would be present. Just before the hearing, the Court received a letter dated November 25,
2008. It was written by a lawyer who said he would attend on the Respondent’s
behalf to ask for an adjournment (the Respondent’s Counsel). However, he had
not arrived when Court opened.
[6]
In these
circumstances, I asked Applicant’s counsel to address the issue of an
adjournment. She vigorously opposed saying that:
-
allowing an
adjournment would prejudice the Applicant. She pointed to the fact that the Applicant
had prepared submissions and done everything he could to exercise his rights.
She noted that the Applicant has been denied sole copyright for nearly two
years and that the Applicant is in his eighties. She argued that, because copyright
protection is limited to the life of the author plus fifty years, an
adjournment would prejudice him owing to his advanced age. As well, she
suggested that an adjournment would deny the public access to an important
work.
-
The Applicant
had invested significant amounts of his limited money, resources and time
preparing for the hearing.
-
Self-represented
parties are required to follow the Court’s rules and the Appearance was not
served in time. She relied on Kalevar v. Liberal Party of Canada, 2001
FCT 1261; 110 A.C.W.S. (3d) 236 (T.D.) aff’d 2002 FCA 246; 115 A.C.W.S. (3d)
358.
[7]
When the Respondent’s
Counsel arrived, he argued that his client had done her best to follow the
instructions on the Notice and that she had a response to make on the merits.
He also criticized the Applicant’s counsel for proceeding in default when she
knew that the Respondent wished to oppose the Application.
CONCLUSION
[8]
The adjournment
will be granted because counsel for the Applicant scheduled this hearing as a
default proceeding knowing that the Respondent wished to oppose the Application.
ORDER
UPON the Respondent’s request for
an adjournment and upon hearing the submissions of counsel for both parties in Toronto on Wednesday, November 26,
2008;
AND UPON being satisfied, for the
reasons given above, that a short adjournment is in the interests of justice;
AND UPON noting that the date given
below is convenient for both parties;
AND UPON being satisfied that, because
the Respondent failed to serve and file her Appearance in time under the Rules
and because counsel for the Applicant failed to advise the Court that the
Respondent wished to oppose the Application, this not a proper case for costs.
NOW THEREFORE THIS COURT
ORDERS that:
1.
This
matter is adjourned for hearing on the merits before me in Toronto on January 22, 2008 at 9:30
a.m.
2.
The
Respondent is to serve and file a Notice of Appearance on or before Friday,
December 12, 2008.
Sandra J. Simpson
Email this Content