Federal Court Decisions

Date: 20070418

Docket: T-466-05

Citation: 2007 FC 399

BETWEEN:

GENERAL MOTORS CORPORATION,

 GENERAL MOTORS OF CANADA LIMITED

Plaintiffs

and

DIABCO INTERNATIONALE INC., MOUHAMAD ALI DIAB,

AUTO MASTER SUPPLIES KING INC., 5B GROUP INTERNATIONAL INC.

 AND AYAD (EDDY) KARKOUTI and JOHN DOE, JANE DOE

AND OTHER PERSONS UNKNOWN

TO THE PLAINTIFFS WHO OFFER FOR SALE, SELL, IMPORT,

 EXPORT, MANUFACTURE ADVERTISE OR DEAL IN

COUNTERFEIT ACDELCO MERCHANDISE

Defendants

and

DIABCO INTERNATIONAL INC.

MOUHAMAD ALI DIAB

Third parties

and

AYAD (EDDY) KARKOUTI AND

5B GROUP INTERNATIONAL INC.

Third parties

REASONS FOR ORDER

(Delivered from the bench in Montreal, Quebec

 on April 13, 2007)

HUGESSEN J.

[1]               Defendants Ayad (Eddy) Karkouti (Karkouti) and 5B International Inc. move to adjourn the present hearing of the plaintiff's summary judgment motion and to produce further evidence. This, of course requires the variance of the scheduling Order made herein December 14, 2006, which fixed today's hearing some four months into the future.

[2]               The grounds invoked are, first that defendants' present solicitor only came on the file two weeks before the case management conference at which the scheduling Order of December 14, 2006, was made and did not have adequate time to familiarize himself with it beforehand; and, second, his client now wishes to produce new evidence from the Chinese supplier of the allegedly counterfeit goods which are at the heart of the present action.

[3]               Overlooking, but not thereby excusing, the fact that the motion is supported only by a solicitor's affidavit, I shall dismiss the motion for two reasons:

a)           The fact that a solicitor has only recently come on a file where there is no evidence, or even an indication, that the previous solicitor has misconducted himself, does not excuse delaying a summary judgment motion which was already, at the time of the December 14, 2006, case management conference some 11 months old. A client who changes solicitors has to hand on the file to his new solicitor, and the latter has to accept it, in the condition in which it then is. Changing one's lawyer will rarely, if ever, justify delaying the progress of a lawsuit.

b)           More fundamentally still, a motion which seeks in effect to introduce new evidence which is not accompanied by affidavit material containing, or at the very least describing in detail the proposed evidence, stands little or no chance of success. Here, not only is there no such affidavit material but the defendant Karkouti admitted when cross-examined only two months ago that he had not even contacted the alleged Chinese supplier of the goods. His solicitor's assertion today that his client wishes to produce such evidence lacks all conviction.

[4]               The motion will be dismissed with costs.

“James K. Hugessen”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-466-05

STYLE OF CAUSE:                          GENERAL MOTORS CORPORATION ET AL

                                                             v. DIABCO INTERNATIONAL INC. ET AL

PLACE OF HEARING:                    Montreal, Quebec

DATE OF HEARING:                      April 13, 2007

REASONS FOR ORDER:               HUGESSEN J.

DATED:                                             April 18, 2007

APPEARANCES:

SOLICITORS OF RECORD: