Citation: 2003 FC 986
Toronto, Ontario, August 11th, 2003
Present: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
MARVEL CHARACTERS, INC. and
MARVEL ENTERTAINMENT GROUP, INC.
Plaintiffs
and
RANDY RIVER INC.
Defendant
REASONS FOR ORDER AND ORDER
[1] The parties in this copyright infringement action agreed to conduct the first round of examinations for discovery of their respective representatives in Toronto on July 16 and 17, 2003. Shortly before examinations were to commence, counsel for the Plaintiffs waived the Plaintiffs' right to discovery, and advised that the Plaintiffs' representative would be made available in New York, and not Toronto.
[2] The Defendant maintains that the Plaintiffs have breached their agreement regarding the conduct of examination for discovery, and have failed to comply with the scheduling Order requiring the parties to complete the first round of examinations for discovery by July 21, 2003. The Defendant therefore moves for an order dismissing this action pursuant to Rule 97 of the Federal Court Rules, 1998 (the Rules). In the alternative, the Defendant seeks an Order directing the Plaintiffs' representative to either attend for examination for discovery in Toronto at her own expense, or pay Defendant counsel's reasonable fees and travel expenses should the discovery be conducted outside of Toronto.
Background facts
[3] The Statement of Claim in this action was issued on October 31, 2001. Pleadings were closed on February 23, 2002. Fifteen months after the commencement of the proceeding, a Notice of Status Review was issued by the Court requiring the Plaintiffs to show why this action should not be dismissed for delay.
[4] Notwithstanding the Defendant's submissions that the action should be dismissed due to the Plaintiffs' delay, the action was allowed to continue as a specially managed proceeding by Order dated March 12, 2003. A schedule was concurrently imposed on the parties, requiring them to complete the first round of examinations for discovery by no later than May 30, 2003.
[5] On consent of the parties, and as case manager, I extended the deadline for completing the first round of examinations for discovery to July 21, 2003. On June 12, 2003, the parties agreed to conduct examinations back to back, with the Plaintiffs' representative being examined on July 17, 2003 and the Defendant's representative being examined on July 18, 2003.
[6] On July 14, 2003, counsel for the Plaintiffs advised counsel for the Defendant by voice-mail that the Plaintiffs had elected to waive their right to discovery. He also indicated that the Plaintiffs' representative would be made available in New York either on July 17 or July 18, and that the Plaintiffs would consent to a reasonable extension of time to the scheduling Order, if requested. This information was confirmed in writing the following day. Counsel for the Defendant rejected the Plaintiffs' proposal to defer the examination and, more particularly, refused to agree to a change of venue of the examination.
[7] At the hearing of the motion, the Defendant withdrew its request to have the action dismissed. Further, counsel for the Plaintiffs acknowledged that their "change of mind" regarding the venue of the examination was a deviation from the parties' agreement.
Analysis
[8] If parties in an action are unable to agree upon a time and place for examinations, a motion may be brought under Rule 90 of the Rules to settle any disagreement. Moreover, in a specially managed proceeding, the parties have the option of informally seeking directions from the case management judge or prothonotary under Rule 385. However, given the scarcity of judicial resources, parties should be encouraged to agree, as they typically do, upon the time and place of examinations between themselves. Once an agreement is reached, the parties should be expected to honour that agreement, or face consequences provided by Rule 97.
[9] Where a person fails to attend an oral examination, Rule 97 provides this Court with discretion to dismiss the proceeding, to order the person to attend at his or her own expense, or order the person or the party on whose behalf the person is being examined to pay the costs of the examination. In the present case, the e-mails exchanged between counsel in June 2003 show that the parties agreed to conduct examinations back-to-back on July 17 and 18, 2003. Given the timing, and the fact that the Defendant and counsel for both parties are all located in Toronto, it is apparent that the parties understood that examinations would be held in Toronto.
[10] In a letter sent two days before the beginning of examinations, counsel for the Plaintiffs indicated, for the first time, that the Plaintiffs' representative would be made available for examination in New York, not Toronto. The Plaintiffs provided no explanation for seeking to change the location for examination. In the absence of any justification, and given only two days' notice to change its plans, the Defendant refusal to conduct examination in New York was fully justified.
[11] Upon being informed of the Defendant's position, the Plaintiffs had two options: (a) proceed with the examination in Toronto as agreed, or (b) seek directions from the Court. The Plaintiffs did neither. It is no answer to say that a Direction to Attend was not served, or that conduct monies were not paid by the Defendant, since the parties' agreement waived such formalities. As a result, I conclude that the Plaintiffs failed to attend a scheduled examination, and are in breach of the Court-ordered deadline for completing the first round of discoveries by July 21, 2003.
[12] Such conduct by the Plaintiffs should be discouraged by invoking the sanction provisions under Rule 97. Failure to do so would simply undermine the purpose of Rule 97 and leave parties, like the Plaintiffs, free to ignore agreements regarding the time and place of examinations. Consequently, the Plaintiffs' representative shall be required to attend for examination for discovery in Toronto and the Defendant is dispensed from paying her travel expenses. The Plaintiffs shall also bear the costs of this motion, in any event of the cause.
[13] The deadline for completing the first round of examination for discovery expired on July 21, 2003. The Plaintiffs did not make their representative available for discovery as agreed upon in advance of the Court ordered deadline. Accordingly, the Defendant is granted an extension of time to complete examination for discovery of the Plaintiffs.
ORDER
THIS COURT ORDERS that
1. The Plaintiffs' representative shall attend for examination for discovery in Toronto.
2. The schedule governing this proceeding is amended as follows:
(a) the parties shall complete the first round of examinations for discovery by no later than September 30, 2003; and
(b) the Plaintiffs shall submit a joint schedule for the completion of next steps in the proceeding by no later than October 31, 2003.
3. Costs of the motion, hereby fixed at $1,000.00, shall be paid by the Plaintiffs to the Defendant in any event of the cause.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1962-01
STYLE OF CAUSE: MARVEL CHARACTERS, INC. and
MARVEL ENTERTAINMENT GROUP, INC.
Plaintiffs
and
RANDY RIVER INC.
Defendant
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 11, 2003
REASONS FOR ORDER
AND ORDER: LAFRENIÈRE P.
DATED: AUGUST 20, 2003
APPEARANCES: Mark L. Robbins
For the Plaintiffs
Mark K. Evans
Mark G. Biernacki
For the Defendant
SOLICITORS OF RECORD: Bereskin & Parr
Barristers and Solicitors
Toronto, Ontario
For the Plaintiffs
Smart & Biggar
Barristers and Solicitors
Toronto, Ontario
For the Defendant
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030820
Docket: T-1962-01
BETWEEN:
MARVEL CHARACTERS, INC. and
MARVEL ENTERTAINMENT GROUP, INC.
Plaintiffs
and
RANDY RIVER INC.
Defendant
REASONS FOR ORDER
AND ORDER