Date: 20080318
Docket: A-44-07
Citation: 2008 FCA 104
Present: RICHARD
C.J.
BETWEEN:
9038-3746 QUEBEC INC., 9014-5731 QUEBEC
INC.,
ADAM CERRELLI and CARMELO CERRELLI
Appellants
and
MICROSOFT CORPORATION
Respondent
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, on March 18, 2008.
REASONS FOR
ORDER BY: RICHARD
C.J.
Date: 20080318
Docket: A-44-07
Citation: 2008 FCA 104
Present: RICHARD
C.J.
BETWEEN:
9038-3746 QUEBEC INC.,
9014-5731 QUEBEC INC.,
ADAM CERRELLI and CARMELO CERRELLI
Appellants
and
MICROSOFT
CORPORATION
Respondent
REASONS FOR ORDER
[1]
This
is a motion dated February 28, 2008 brought by the respondent Microsoft Corp.
in writing pursuant to Rule 369 of the Federal Courts Rules for an order
requiring the payment into Court of the sum of $70,354.35 by the appellants
Carmelo Cerrelli and 9014-5731 Quebec Inc. as security for costs pursuant to
Rule 416 and for an order that such security for costs be made by payment into
the Court by April 1, 2008 failing which the appeal shall be dismissed with
costs.
[2]
The
respondent seeks security of the costs of this appeal on the grounds that there
are two outstanding costs awards in regards to the underlying action being
appealed which remains unpaid, one dating from August 2005 and the other from
June 2007.
[3]
The
judgment under appeal is dated December 18, 2006 and the hearing by the trial
judge regarding costs was held on June 11, 2007 with a decision that costs be
awarded on a solicitor-client basis made on June 20, 2007.
[4]
By
notice of appeal dated January 17, 2007 the appellants appealed the judgment of
the Federal Court pursuant to subsection 27(1) of the Federal Courts Act.
[5]
A
motion brought by the appellants for a stay of the judgment pending their
appeal was dismissed by this Court by Order dated February 20, 2007.
[6]
The
appellants do not deny that the assets of the appellants may be insufficient to
satisfy the costs awarded against them but submit that the timing of the
respondent’s motion for security for costs is inappropriate considering that
the notice of appeal in this matter was issued on January 17, 2007
and that the appeal has been set down for hearing on April 16, 2008.
[7]
Further,
the appellants claim that there are serious issues to be tried on the appeal
and that it would be a grave injustice to make the hearing of the appeal
conditional upon the appellants paying the security for costs requested by the
respondent.
[8]
The
record before me discloses that the appellant Carmelo Cerrelli was examined in
aid of execution of the judgment on his own behalf and on behalf of 9038-3746
Quebec Inc. and 9014-5731 Quebec Inc. on April 16, 2007. On this examination
Carmello Cerrelli gave evidence that neither he nor the two corporate
defendants had any assets or ability to satisfy the judgment.
[9]
Thereafter,
the procedural steps to perfect the appeal were undertaken by both the
appellants and the respondent.
[10]
The
record discloses that motions were brought in 2007 relating to an extension of
the time for the filing of the appeal book and relating to the contents of the
appeal book. The respondent participated in these interim proceedings.
[11]
The
appeal book was filed and served and both the appellants and the respondent
served and filed their memorandum of fact and law.
[12]
The
requisition for hearing contemplated by Rule 347 was filed by the appellants on
November 21, 2007 and on November 22, 2007 counsel for the respondent confirmed
in writing to the Court their availability for the hearing of the appeal.
[13]
As
of the date of the motion for security for costs all procedural steps in the
appeal had been completed and the hearing of the appeal has been fixed to be
heard on April 16, 2008.
[14]
In
these circumstances the respondent’s motion for and order that the appellants
give security for costs before proceeding with the appeal should not be allowed.
[15]
Accordingly,
the motion will be dismissed.
“J.
Richard”
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