Date: 20030326
Docket: T-779-01
Neutral citation: 2003 FCT 353
Toronto, Ontario, Wednesday, the 26th day of March, 2003
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
FERO HOLDINGS LTD.
Plaintiff
- and -
BLOK-LOK LTD.
Defendant
REASONS FOR ORDER AND ORDER
[1] This motion is for an order to reverse the decision of Prothonotary Lafrenière dated
February, 20, 2003, which dismissed the Defendant's motion for the following relief:
b) pursuant to Rule 107(1) that any question as to the extent of the infringement of
any rights, any question as to the damages flowing from the infringement of any rights any question as to the profits or damages arising from the infringement of any rights (collectively the "deferred issues") shall be the subject of a separate determination to be conducted after the trial of the liability issue in this action, if it then appears that the deferred issues need to be decided;
c) pursuant to Rule 107(2) and 247(b), that there shall be no oral or documentary discovery on the deferred issues until after conclusion of the trial on the liability issue; such discovery to resume after the trial on the liability issue, if it then appears that the deferred issues need to be decided;
d) for such further and other relief as to this Honourable Court may seem just; and
e) for the Defendant's costs.
[2] Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, [1993] 1 C.T.C. 186, 93
D.T.C. 5080, 149 N.R. 233 (C.A.) is authority for the proposition that discretionary orders of prothonotaries should not be disturbed on appeal unless they are clearly wrong, in the sense that the exercise of the discretion was based upon a wrong principle or misapprehension of the facts, or they raise questions vital to the final issue of the case, in which case the reviewing judge should exercise his or her discretion de novo.
[3] The Defendant's motion before Prothonotary Lafrenière was, essentially, a bifurcation
motion and did not raise questions vital to the final issue of the case, which is a patent infringement action concerning masonry tiles. Hence, the order of Prothonotary Lafrenière dated February 20th, 2003 should not be set aside unless it is "clearly wrong", in the sense of being based upon a wrong principle or misapprehension of the facts.
[4] Counsel for the Defendants argued that the test to be applied under Rule 107 when the
Court is considering a bifurcation motion is whether the Court is satisfied, on a balance of probabilities, that in light of the evidence and all the circumstances of the case (including the nature of the claim, the conduct of the litigation, the issues and the remedies sought) severance is more likely than not to result in the just, expeditious and least expensive determination of the proceedings on its merits.
[5] The major consideration for severance under Rule 107 is the extent to which significant
costs and savings of time would result from the bifurcation of the issue.
[6] The Defendant argues that Prothonotary Lafrenière's decision was wrong because:
(a) he advised Defendant's counsel at the hearing that where a Defendant seeks bifurcation and the Plaintiff does not consent, the Court will not, as a matter of
course, allow the motion. This meant that he wrongly applied the proper test for bifurcation under Rule 107 as it presently exists, and applied the test that existed under the former Rule 480 as enunciated in Canamerican Auto Lease et al. v.The Queen[1985] 1 F.C. 638 (F.C.T.D.);
(b) because Plaintiff's counsel was not asked to make submissions at the hearing. Prothonotary Lafrenière, in effect, applied a far more stringent test, requiring the Defendant to establish its case on a balance of probabilities;
(c) he erred in finding that the motion for bifurcation was made late in the day because, under Rule 107, a motion can be made at any time; and
(d) he did not give sufficient weight to all of the evidence before the Court and, in effect, had already decided the motion (based on the lack of the Plaintiff's consent) prior to the submissions of Defendant's counsel.
[7] Unfortunately for the Defendant in this motion, his allegations of error by Prothonotary
Lafrenière are based upon little more than a difference of opinion over the weight to be given to evidence, and upon allegations by Defendant's counsel concerning what was said at the hearing, which, as counsel for the Plaintiff points out, is little more than an informal narrative, and these matters should not be taken out of context. I agree.
[8] The reasons for Prothonotary Lafrenière's order are found in the order itself, which
clearly states that he has reviewed the materials filed and heard the submissions of counsel and that, "the Defendant having failed to establish that the separation of the issues of damages and/or profits is more likely than not to result in a more just, expeditious and less expensive determination of the action on its merits than will the continuation of the unified proceeding", he dismisses the motion.
2) The reasons of Prothonotary Lafrenière are not, therefore, clearly wrong or based upon a
wrong principle or misapprehension of the facts. Hence, I decline to disturb his decision or this matter.
ORDER
IT IS ORDERED THAT:
1. The Defendant's motion is dismissed.
2. Costs of this motion, hereby fixed at $250.00 shall be to the Plaintiff in the cause.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: T-779-01
STYLE OF CAUSE: FERO HOLDINGS LTD.
Plaintiff
- and -
BLOK-LOK LTD.
Defendant
DATE OF HEARING: MONDAY, MARCH 24, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: RUSSELL J.
DATED: WEDNESDAY, MARCH 26, 2003
APPEARANCES BY: Mr. Michael Charles
For the Plaintiff
Mr. Harjinder Mann
For the Defendant
SOLICITORS OF RECORD: Michael E. Charles
Bereskin & Parr
40th Floor, Scotia Plaza
40 King Street West
Toronto, Ontario
M5H 3Y2
For the Plaintiff
Serge Anissimoff
Harjinder Mann
Anissimoff & Associates
Barristers & Solicitors
235 North Centre Road
Suite 201
London, Ontario
N5X 4E7
For the Defendant
FEDERAL COURT OF CANADA
Date: 20030326
Docket: T-779-01
BETWEEN:
FERO HOLDINGS LTD.
Plaintiff
- and -
BLOK-LOK LTD.
Defendant
REASONS FOR ORDER
AND ORDER