Date: 20000405
Docket: T-1064-98
Ottawa, Ontario, this 5th day of April 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
TIME WARNER ENTERTAINMENT COMPANY, L.P.
Plaintiff
- and -
JANE DOE and JOHN DOE and PERSONS , NAMES UNKNOWN, WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, PRODUCE, PRINT, DISTRIBUTE, ADVERTISE, DISPLAY, STORE, SHIP OR DEAL IN UNAUTHORIZED OR COUNTERFEIT LOONEY TUNES CHARACTERS MERCHANDISE AND THOSE PERSONS WHEN LISTED IN SCHEDULE "A"
Defendants
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is one of a group of files where there are a significant number of defendants in an action as a result of the service and execution of "rolling" Anton Piller orders against various individuals. These files have been the subject of a Notice of Status Review, in response to which submissions have been made by counsel for the plaintiff. During the currency of the status review, various steps have been taken, including motions for default judgment and motions for judgment. The files come to me for completion of the status review.
[2] An action such as this one differs from the usual in that there may be a very large number of defendants, whose only connection is their infringement or alleged infringement of the plaintiff"s intellectual property rights. This is not a multi-defendant claim where there is a factual nexus between the defendants. In this action, each defendant represents a distinct set of facts giving rise to a separate claim, even though all are brought under the same statement of claim. In those circumstances, it is not useful to speak of continuing the action except in the context of continuing it against particular defendants.
[3] Implementing status reviews in this context has proven to be difficult. At one time it was thought that these actions might be exempted from status reviews but Associate Chief Justice Richard (as he then was) ruled that these files are subject to the Federal Court Rules, 1998 including the rules as to status review. At Richard A.C.J."s invitation, three categories of defendants status were identified:
| - defendants in respect of whom the plaintiff was entitled to obtain default judgment but had not done so. |
| - defendants in respect of whom the plaintiff had no intention of pursuing the matters to a final order. |
| - defendants in respect of whom the plaintiff intended to proceed to final orders by way of summary judgment applications or motions for judgment. |
[4] A fourth category exists though it was not raised by Richard A.C.J. consisting of defendants against whom the plaintiff had already obtained a final order, or in which a Notice of Discontinuance had been filed.
[5] Counsel have made submissions with respect to the first three categories of defendants but in the interval, since those submissions were made, default judgments have been applied for and granted, and motions for summary judgment or other relief have been brought. As a result, in many cases, the status of the claim as regards a given defendant has changed since the submissions were made. If this action is to be continued, against whom shall it be continued?
[6] With respect to those claims where default judgment has been obtained, case management is not an issue since the claim has been concluded by the order of the Court. Similarly, where the claim is the subject of a final order, whether by consent or otherwise, it ought not be subject to case management on the basis of the decision of the Court of Appeal in Carpenter Fishing Corporation v. Canada [1998] 2 F.C. 548 which held that there should only be one final order in an action. Thus an action where a permanent injunction has been obtained ought to be considered concluded and ought not be kept open against the possibility that the defendant might default on a settlement agreement involving the payment of money. A breach of a settlement agreement is a good cause of action in itself. Having regard to the activity on this file since the Notice of Status Review was issued, the Court is not in a position to easily identify which claims could be the subject of case management. Therefore, counsel will be asked to submit to the Court a list of defendants whose claims are subject to case management on the basis that they are not subject to a final order (or Notice of Discontinuance) and have not been abandoned by the plaintiff.
[7] The usual practice of the Court is not to permit the taking of further steps in the proceeding once a status review is initiated. The rationale is that the Notice of Status Review is not a wake-up call, it is a milepost at which the plaintiff"s conduct of its claim will be examined to see if the claim should be allowed to continue. Baroud v. Canada [1998] F.C.J. No. 1729. Allowing further steps to be taken during status review effectively pre-empts the status review process. Having regard to what has gone before, any steps which are currently under way may be completed without further order, subject however to any order which the Case Management Judge may make. No further steps may be undertaken prior to the appointment of the Case Management Judge.
[8] Furthermore, no new defendants should be added to this Statement of Claim prior to the appointment of the Case Management Judge, and thereafter only with leave of the Case Management Judge. This is so because it is difficult to conduct an orderly review when the number of parties involved is changing. Furthermore, the practical difficulties created by the sheer volume of defendants in this action, and others like it, calls for some limit to be put upon their number. There is some logic to holding defendants in this action to the current number, subject to the discretion of the Case Management Judge. There may well be some merit in requiring a new action to be commenced when the old one goes into case management. That will be a matter for the Case Management Judge.
[9] These reasons were circulated to counsel in draft form prior to issuance as counsel had no opportunity to address the Court on various issues raised in the reasons. Counsel objects to paragraph 5(a) of the order because various matters are pending which will be delayed if they are tied to the appointment of a Case Management Judge. Paragraph 5 of the order is subject to paragraph 4 which provides that all steps against the defendants in which the necessary documents have been served and filed may be continued without further order of the Court. It appears to me that this meets counsel"s objection. To the extent that counsel has received instructions to bring summary judgment applications but has not done so yet, this is what was intended to be caught by paragraph 5 (b) of the order. As a result, the order will issue in form of the draft circulated as follows:
ORDER
Upon reviewing the submissions received in response to the Notice of Status Review, it is hereby ordered that:
| 1- Counsel will, within 30 days of the date of this order, provide the Court with a list of all defendants against whom the plaintiff has not obtained a final order or filed a Notice of Discontinuance, and against whom the plaintiff intends to take further steps in the action ( the Active List). |
| 2- This action shall be continued as a specially managed proceeding with respect to the defendants named in the Active list. |
| 3- All claims against defendants not listed on the Active List and in respect of which the plaintiff has not obtained a final order or filed a Notice of Discontinuance shall stand dismissed for delay. In such cases, the plaintiff has leave to destroy or dispose of property seized from the defendants against whom the claim is dismissed for delay. |
| 4- All steps against the defendants named on the Active List in respect of which the necessary documents have been served and filed at the date of this order may be completed without further order of the Court. |
| 5- a) Except as provided in paragraph 4, no new steps shall be undertaken against a defendant on the Active List prior to the appointment of the Case Management Judge. |
| b) Counsel shall prepare a timetable showing what steps remain to be taken to conclude the claims against the defendants listed on the Active List and shall forward it to the Case Management Judge within 30 days of the date of this order. |
| c) In the event that the steps set out in the timetable are not completed in the time specified therein, the Case Management Judge may on his/her own motion dismiss the claim against that defendant in question for delay without further notice to the plaintiff. |
| 6- No new defendants shall be added to this action prior to the appointment of the Case Management Judge and thereafter only with leave of the Case Management Judge. |
"J.D. Denis Pelletier"
Judge