Docket: A-5-16
A-33-16
Citation: 2016 FCA 209
Present: WEBB
J.A.
|
BETWEEN:
|
|
VENNGO INC.
|
|
Appellant
|
|
And
|
|
CONCIERGE CONNECTION
INC. c.o.b. as PERKOPOLIS, MORGAN C. MARLOWE and RICHARD THOMAS JOYNT
|
|
Respondents
|
REASONS
FOR ORDER
WEBB J.A.
[1]
Venngo Inc. (Venngo) had commenced a trademark
infringement action in the Federal Court. The action was dismissed on December
5, 2015. Venngo has appealed that judgment (Appeal file number: A-5-16).
Following the decision on the infringement action, the Federal Court issued an
order with respect to costs. Venngo has also appealed that order (Appeal file
number: A-33-16). As a result, the appeals A-5-16 and A-33-16 both arise from
the one action – one appeal from the decision dismissing the action and the
other from the costs order.
[2]
By an order of this Court dated April 19, 2016
these appeals were consolidated. Following the consolidation of the appeals, Venngo
brought a motion for an order extending the time within which it could serve
its memorandum of fact and law. An extension of time was granted, albeit a
shorter extension of time than Venngo had requested. Venngo then filed and
served two memoranda of fact and law – a 30 page memorandum in relation to A-5-16
and a 16 page memorandum in relation to A-33-16.
[3]
The respondents have brought this motion to
strike these memoranda on the basis that because the appeals were consolidated Venngo
should only have filed one memorandum and not two.
[4]
Rule 70 (4) of the Federal Courts Rules,
SOR/98 – 106 provides that “a memorandum (exclusive of Part
V [list of authorities] and appendices) shall not exceed 30 pages in length”.
The respondents are claiming that, by filing two memoranda that contain a total
of 46 pages, Venngo has circumvented this rule without the approval of this
Court.
[5]
Venngo has argued that even though the appeals
were consolidated it still has the right to file a 30 page memorandum in
relation to each appeal.
[6]
Rule 105 provides that:
|
105 The Court may order, in respect of
two or more proceedings,
|
105 La
Cour peut ordonner, à l’égard de deux ou plusieurs instances :
|
|
(a) that they be consolidated, heard together or heard one
immediately after the other;
|
a)
qu’elles soient réunies, instruites conjointement ou instruites
successivement;
|
|
(b) that one proceeding be stayed until another proceeding
is determined; or
|
b)
qu’il soit sursis à une instance jusqu’à ce qu’une décision soit rendue à
l’égard d’une autre instance;
|
|
(c) that one of the proceedings be asserted as a
counterclaim or cross-appeal in another proceeding.
|
c) que l’une d’elles fasse l’objet d’une
demande reconventionnelle ou d’un appel incident dans une autre instance.
|
[7]
In the Rules there is a distinction drawn
between matters that are consolidated and those that are heard together. Venngo
has argued that when two matters are consolidated only one appeal book will be
filed but otherwise it is still entitled to file two memoranda (one memorandum
for each appeal). The only other steps remaining for an appeal are the filing
of the book of authorities and the argument. Since the argument would
presumably be the same whether the appeals are consolidated or heard together,
the only other step that could be affected by whether the appeals are
consolidated or heard together is the filing of the book of authorities. In my
view, it would not be necessary to consolidate appeals simply to have a common
book of authorities. If appeals will be heard together, it would seem logical
that one joint book of authorities could be used for all of the appeals that
will be heard together. Likewise, if the parties are unable to agree upon a
single joint book of authorities, each party could file a book of authorities
that would be used for all of the appeals that would be heard together. As a
result, the only difference between consolidating appeals and having appeals
heard together, according to Venngo, would be the number of appeal books that
would be filed.
[8]
I do not agree that this is the result of
consolidation. If the only difference between consolidating proceedings and
having them heard together is in relation to the number of appeal books that
are to be filed, then there would be no substantive distinction between consolidating
appeals and having them heard together. Whether one appeal book is filed or two
appeal books are filed is of little consequence if the total number of pages is
approximately the same. If filing two appeal books would result in a
significant duplication of documents, there may be other ways to avoid such
duplication, other than consolidating proceedings. In my view, the Rules do not
provide for a consolidation of proceedings just to reduce the duplication of
documents that could occur if two or more appeal books are filed.
[9]
The effect of a consolidation of proceedings is that
the proceedings are to be treated as if they are one for the purposes of
applying the Rules. In Wood v. Farr Ford Ltd., [2008] O.J. No. 4092, 67
C.P.C. (6th) 23, Quinn J. noted in paragraph 26 that:
26 Although it has been said that “[t]he
difference between consolidation and an order directing the trial of actions
together is more technical than real” (see The Civil Litigation Process,
ibid.), I think the difference can be quite real if the matter is
addressed promptly. Actions ordered tried together largely offer a savings of
time and money, and enhanced convenience, at the trial stage. However,
consolidation provides those features from an earlier stage in the proceedings,
including: one set of pleadings, affidavits of documents, discoveries and
pre-trial memoranda and one pre-trial.
[10]
This confirms that a consolidation would mean that
there is only one memorandum to be filed in relation to the consolidated
appeal.
[11]
In Chen v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1573, [2005] 3 F.C.R. 82, Russell J. noted that:
62 The final aspect of the relief
that the Applicants seek in this motion (in the event that conversion, joinder
and consolidation are allowed) is leave to amend the pleadings in IMM-577-04,
IMM-1467-04, IMM-576-04 and IMM-10140-03 into one statement of claim.
63 In my view, leave to amend on the
facts before me follows inevitably from conversion and consolidation….
[12]
Since having one statement of claim would
inevitably follow from the consolidation of proceedings, likewise filing one
memorandum would also inevitably follow from a consolidation of appeals.
[13]
I do not accept Venngo’s argument that it is
entitled to file a memorandum in relation to each appeal. Appeals are
consolidated because they are related and it would be more efficient to have
two or more appeals continue as if they were a single appeal. In this case, the
order consolidating these appeals noted that “the files
are factually and legally related”. Because the files are related, they
can proceed as if they are one appeal.
[14]
The logical consequence of Venngo’s position is
that if three appeals were consolidated it would be entitled to file, in total,
90 pages of memoranda, if four appeals were consolidated it would be entitled
to file, in total, 120 pages of memoranda and so on depending on the number of appeals
that were consolidated. This cannot be the consequence of a consolidation of
proceedings.
[15]
As a result the memoranda that have been filed by
Venngo are to be stricken from the record and Venngo shall, on or before
September 23, 2016, file one memorandum in relation to the consolidated appeal
that complies with the Rules.
[16]
Venngo has, in any event, requested that it be
allowed to file a memorandum that exceeds 30 pages. However, it has not
provided sufficient justification for permitting it to do so. Simply stating
that because it has already written 46 pages it should be allowed to file a
memorandum of the same length is not sufficient to determine why Venngo would
not be able to reduce the overall length of its memorandum to 30 pages as
required by the Rules.
[17]
In Forestethics Advocacy Assn. v. Canada
(Attorney General), 2014 FCA 182, Stratas J.A. noted that:
21 Rule 70 of the Federal Courts Rules, supra specifies that the page limit is 30
pages. It repeats the word “concise” three times. The 30 page limit and the
thrice-repeated requirement of conciseness apply to even the most complex,
high-stakes appeals on the merits. Accordingly, the presence of “important and
complicated questions,” by itself, does not justify an increase in the page
limit: Canada v. General Electric Capital Canada
Inc., 2010 FCA 92 at paragraph 5.
22 Rule 70 also uses the word “memorandum,” not “encyclopaedia.” The
aim of Rule 70 is to have counsel advance only central and important points,
not everything that can possibly be imagined. The best memoranda target the
controlling idea of the case -- the particular part of the legal test upon
which the case will turn. Then, after a smattering of orienting information,
they deploy only the facts and authorities relevant to their position on the
controlling idea. And throughout, they supply accurate citations so we can
verify what we have been told and investigate the finer details.
23 Sadly, that is not the norm. All too often, we are dragged through
blizzards of trivia, ponderous explanations of the elementary or
inconsequential, bald assertions without demonstration or citation, repetitive
submissions, block quotes of boggling length, and summary after summary of case
law with no selection, distillation or synthesis. These bloat the page count
and dissipate the force of the argument, sometimes to the vanishing point. My
former colleague, Justice John Evans, who read thousands of memoranda during
his exemplary career, put it well:
Conciseness is a virtue which is
always in demand but, in my experience, often conspicuous by its absence from
memoranda of fact and law filed in this Court. I do not recall an occasion when
I thought that the expansion of a memorandum by another 10 pages would have
improved things. Quite the contrary, in fact.
(Sawridge Band
v. Canada, 2006 FCA 52 at paragraph 20; see also Justice John I.
Laskin, “Forget the Windup and Make the Pitch: Some Suggestions for Writing
More Persuasive Factums” (1999) 18 Adv. Soc. J. No. 2, at pages 3-12 and
Justice Marvin A. Catzman, “The Wrong Stuff: How to Lose Appeals in the Court
of Appeal” (2000) 19 Adv. Soc. J. No. 1 at pages 1-5.)
24 For these reasons, requests to increase the 30 page limit in this
Court are “granted sparingly” and are exceptional: General
Electric, supra at paragraph 5.
[18]
Venngo has not identified why the arguments that
it wants to raise would be any more complex than any other arguments in other
appeals where the parties are able to reduce the memorandum to the required
length. Therefore, the memorandum to be filed by Venngo shall not exceed 30
pages as provided in the Rules.
[19]
As a result, the motion is granted and the
memoranda as filed by Venngo are stricken from the record. Venngo shall, on or
before September 23, 2016, file one memorandum of fact and law for the
consolidated appeal that complies with the Rules. Venngo shall pay the costs of
this motion to the respondents, fixed in the amount of $1,500.
"Wyman W. Webb"
Email this Content