Date: 20030513
Docket: A-65-03
Neutral citation: 2003 FCA 224
CORAM: STONE J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
JAGUAR CARS LIMITED and
FORD MOTOR COMPANY OF CANADA, LIMITED/
FORD DU CANADA LIMITEE carrying on business as
JAGUAR CANADA
Appellants
- and -
REMO IMPORTS LTD.
Respondent
Heard at Toronto, Ontario, on May 13, 2003.
Judgment delivered from the Bench at Toronto, Ontario, on May 13, 2003.
REASONS FOR JUDGMENT OF THE COURT: STONE J.A.
Date: 20030513
Docket: A-65-03
Neutral citation: 2003 FCA 224
CORAM: STONE J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
JAGUAR CARS LIMITED and
FORD MOTOR COMPANY OF CANADA, LIMITED/
FORD DU CANADA LIMITEE carrying on business as
JAGUAR CANADA
Appellants
- and -
REMO IMPORTS LTD.
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on May 13, 2003)
STONE J.A.
[1] This is an appeal from an order of Gibson J. dated January 24, 2003 upholding a decision of the Prothonotary at Toronto refusing joinder of Moise Bassal, president of the Respondent, as a defendant in the Appellants' counterclaim. In deciding as he did, the Prothonotary noted the Appellants' delay in bringing the motion for joinder and concluded that granting it would result in "serious prejudice" both to the Respondent and to Mr. Bassal.
[2] The action, for trade-mark infringement and for other relief, has been underway since June 1991. In March 1992, the Appellants filed their defence as well as a counterclaim for infringement of their trade-mark rights and for an injunction to restrain further infringement by the Respondent. At the examination of Mr. Bassal for discovery in 1996 on behalf of the Respondent, the Appellants became aware that Mr. Bassal was the sole shareholder of the Respondent. After that, the action moved forward at a rather slow pace and was not ready for trial in October 2002. It is not until that month that the Appellants launched their motion to join Mr. Bassal as a defendant to the counterclaim.
[3] The Appellants, relying on Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), argue that the Prothonotary was clearly wrong in refusing joinder and that this deprives them of pursuing their counterclaim against Mr. Bassal to judgment at trial. It must be remembered, however, that the Prothonotary was acting in his capacity as a "case management judge" under the new Rules of the Court which were adopted in 1998 when case management was first introduced. A new day thus dawned with the adoption of that initiative. Case management had been unknown under the previous Rules and, indeed, in the whole long history of the Court.
[4] As Gibson J. pointed out, this Court has decided that it should not intervene with a decision of a case management judge except "in the clearest case of a misuse of judicial discretion": Sawbridge Band v. Canada [2002] 2 F.C. 346. As this Court made clear in the companion case of Sawbridge Band v. Canada, 2001 FCA 339 at paragraph 4, a question of joinder is quintessentially a matter of case management. It is clear to us that Gibson J. was fully alive to these important new principles and that he correctly applied them in upholding the Prothonotary's decision.
[5] The appeal will therefore be dismissed with costs.
"A. J. Stone"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: A-65-03
STYLE OF CAUSE: JAGUAR CARS LIMITED and FORD MOTOR COMPANY OF CANADA, LIMITED/FORD DU CANADA LIMITEE carrying on business as JAGUAR CANADA
Appellants
- and -
REMO IMPORTS LTD.
Respondent
DATE OF HEARING: MAY 13, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: STONE J.A.
DATED: MAY 13, 2003
APPEARANCES BY: Mr. J. Douglas Wilson
For the Appellants
Mr. Richard Uditsky
For the Respondent
SOLICITORS OF RECORD:Ridout & Maybee LLP
Toronto, Ontario
For the Appellants
Richard Uditsky
Montreal, Quebec
For the Respondent
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