T-338-96
B E T W E E N:
PUBLIC RUSSIAN TELEVISION O.R.T.V.
Plaintiff
- and -
CHUM LIMITED, RADIO 1540 LIMITED and RUSSIAN CANADIAN
BROADCASTING LANGUAGE TV PROGRAM CONCORD a not for
profit corporation No. 1075563
Defendants
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
In this case Public Russian Television O.R.T.V. (hereinafter "Public Russian" or "the Plaintiff") has brought an action against CHUM Limited, Radio 1540 Limited (hereinafter collectively "the CHUM Defendants") and also against Russian Canadian Broadcasting Language TV Program Concord a not for profit corporation No. 1075563 (hereinafter "Russian Canadian" or "the Russian Canadian Defendant"). The Statement of Claim herein was issued on February 12th, 1997. The Russian Canadian filed its Defence on March 11th, 1996. On May 8th, 1996, the CHUM Defendants moved to strike out the Statement of Claim or in the alternative for particulars, alleging that they had originally requested particulars on March 5th, 1996. On August 7th, 1996, the Russian Canadian Defendant moved for security for costs. On August 20th, 1996, I signed a consent order for particulars to be delivered within 60 days of the date of the order, and also struck out paragraphs 18, 19 and 20 of the Statement of Claim with leave to the Plaintiff to serve an Amended Statement of Claim within 30 days of the date of the order if so advised. The motion for security for cost was adjourned on a peremptory basis to September 9th, 1996. Also, on August 30th, the CHUM Defendants moved for security for costs by motion returnable September 9th. On the 10th of September, I ordered security for costs in the amount of $1,700.00 for Russian Canadian be posted within 30 days and stayed matters until that time and I further ordered security for Russian Canadian in the amount $14,112.00 to be posted on or before December 8th, 1996.
With regard to the CHUM Defendants' motion, I ordered security for costs in the amount of $2,400.00 to be posted within 30 days and the further amount of $20,100.00 to be posted by December 8th, 1996 and applied stays. I amended my order as to costs for the CHUM Defendants to provide that it was made without prejudice to their right to reapply for additional security for costs if so advised. On October 23rd, 1996, the CHUM Defendants moved for dismissal on the grounds inter alia that the particulars ordered had not been supplied and further that the first instalment of security for costs had not been posted, this motion was returnable October 28th, 1996. Also on October 23rd, Russian Canadian filed a motion returnable October 28th for an order that the action be dismissed for the failure of Public Russian to post security for costs. Counsel for Plaintiff appearing on the motion indicated that first instalment of security would be available on the following day, I therefore ordered that, if the security for costs were not paid into court the following day, the action would be dismissed. On the ex parte application of the Defendants CHUM, if the monies ordered were paid in, the Plaintiff would have 3 weeks to serve and file particulars, and if that was not done the Plaintiff might move ex parte to strike. With regard to Russian Canadian motion, I ordered that if the security for costs was not paid on the following day, the action would be dismissed on the ex parte application of that Defendant.
On November 21st, 1996, the Defendants CHUM moved for an order that the action be permanently stayed against them on the grounds that particulars had not been supplied. I granted a permanent stay by order dated November 25th, 1996.
By motion filed December 10th returnable December 16th, 1996, Russian Canadian moved for dismissal on the grounds that the second instalment of security for its costs had not been posted. On December 16th, 1996, the Plaintiff filed a motion seeking inter alia and extension of time to post security for costs and also a lifting of the stay of the action against the CHUM Defendants, these two motions were adjourned from time to time until they came on before me on February 10th, 1997. Dealing first with the application to lift the stay of the action against the Defendants CHUM.
Among the grounds urged by the Plaintiff were that the permanent stay was made on ex parte motion and the Rule 330 would apply, I think it is doubtful that the order was made "ex parte" as those words are used in Rule 330. As the second motion made in the absence of the Plaintiff was anticipated by my earlier order, which was made in the presence of Plaintiff's counsel who was moving at the time for the extension, which I granted and with which I coupled the right to apply ex parte, I am of the view that the order here was probably not an ex parte order within the meaning of that rule.
Counsel for the CHUM Defendants indicated that my order was final and that the Rule only applied to interlocutory orders. The motions before me, which resulted in this order were both interlocutory, but the order permanently staying was final in effect. The Rule draws no distinction between interlocutory and final orders. The cases have indicated that the Rule is not available to rescind judgments. There is no judgment here. I am therefore of the view, that if my order permanently staying was in fact ex parte, Rule 330 would be available for consideration. In May and Baker (Canada) Ltd. v. The Oak et al, [1979] 1 F.C. 410, it was indicated that an ex parte order should be set aside if the Court is convinced it should not have been made. This to me indicates that if the party not represented at the hearing can show on the facts available at the time that the order was wrongly made, it should be set aside. The Rule does not contemplate reopening the matter to take into account newly generated evidence. In my view, even if I am wrong, and Rule 330 may be considered, my order should not be set a side under the Rule as it was not wrongly made at the time it was made.
Counsel for the Plaintiff also argued that s. 50(3) of the Federal Court Act indicated I had jurisdiction to lift a stay and argued it was right and just that I do so. The case law indicates that a stay should be lifted only when there are new facts before the Court (W.S.M. Inc. v. Slaight Communications Inc. (1986), 10 F.T.R. 1). It is suggested that the Plaintiff has now supplied the particulars requested. My order in this regard was a final stay, there must be some finality to litigation and I do not think it appropriate to lift a stay because facts are now available, which were not available at the time my order was made. In my view, Rule 1733 is the Rule which permits the reversal of an order on the grounds that something has arisen subsequent to the making of the order. I question that Rule 1733 is applicable to this Plaintiff. The Rule deals with matters arising subsequently or subsequently discovered. The particulars requested could not have arisen subsequent to my order, they ought to have been known before the Statement of Claim was issued. Similarly, I do not believe the particulars were subsequently discovered, they deal with incorporation and chain of title and that sort of thing all of which was known. It appears the inertia of the Plaintiff's monolithic structure prevented it from bringing forward the particulars when ordered. I do not think that inability to produce particulars excuses the delays (it may explain them), the delays have been explained as the inability of the Canadian Agent to obtain the information. The Canadian Agent is not a party. Failure is of the party to supply the information which responsible people knew was required, and in fact had available, there is no excuse for the non production and I do not believe it just to lift the stay nor to attempt to apply Rule 1733. The motion to lift the stay against the CHUM Defendants is dismissed.
Dealing with the motion by the Plaintiff for an extension of time to post security for the costs of the Russian Canadian Defendant and the motion of the Russian Canadian Defendant to dismiss for failure to post security for costs, I should first review the history. In September 1996, the Plaintiff was ordered to post security for costs in two instalments. In October, I granted additional time for payment of the first instalment, the second instalment due in December was not paid when ordered and the Defendant Russian Canadian moved for dismissal by motion filed December the 10th and returnable December 16th. On December 16th, the Plaintiff filed a motion seeking inter alia an extension of time to post security for costs, these motions were put over until they came up before me on February 10th, 1997. Security not having been posted, the stay of the plaintiff's action against Canadian Russian continues. When before me on that date, counsel for the Plaintiff stated that it was anticipated he would be in funds at the latest on the following day to be able to post security. It is apparent that the Plaintiff was unable to post security in December 1996 when he moved for an extension. Presumably, at that time, the Plaintiff anticipated being in funds within the 45 day extension the Plaintiff requested in its December motion. It is apparent it would not have been and yet another extension would have to have been requested.
It is apparent that the Plaintiff has no hesitation in applying for extensions. There would appear no reason why it did not apply for an extension before the time for payment ran out. Had the Plaintiff applied at that time the Defendant's motion would not have been required. This matter will be taken into account when awarding costs.
In Esponoza v. Canada (Min. of Employment & Immigration) (1992), 142 N.R. 158, it was indicated that an extension of time might be granted even if the time limit being extended had been imposed on an peremptory basis. Before an extension can be granted the Plaintiff must present evidence excusing all of the delays, it must show that an arguable case exists and must show that the Defendant will not be prejudiced.
Implausible as it seems, the evidence is that the officials involved are not willing to transfer funds in an amount of less than $40,000.00 from Russia without the approval of the President, who is sick. In such circumstances, the defending party must fear for any costs which may be awarded to it. The evidence of the inability of the President to approve the transfer, in my view, excuses the delay. The affidavit of Yefim Sitsker implies the existence of an arguable case. A four month delay in posting security will not unduly prejudice the Defendant Russian Canadian, which has already filed its defence. Any costs to which the Defendant Russian Canadian has been put because of the failure of the Plaintiff to respond promptly can be compensated with costs, which will be awarded with respect to both motions for extension on a solicitor and client basis payable forthwith after taxation or after agreement by the parties as to amount and in addition to the costs for which security was ordered posted.
ORDER
The motion to set aside the permanent stay of the action against the CHUM Defendants is dismissed with costs to that Defendant in any event of the cause payable forthwith after taxation or after agreement as to amount. The motion of the Russian Canadian Defendant is dismissed. The Plaintiff's motion for an extension of time to post security for costs is granted in part by providing that the Plaintiff may within 10 days of the date of this order, post the final instalment of security for costs of the Defendant Russian Canadian, and shall also pay Russian Canadian's costs of this motion and the preceding extended motions on a the solicitor and client basis forthwith after taxation or after agreement with the parties as to amount.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
February 24, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-338-96
STYLE OF CAUSE: PUBLIC RUSSIAN TELEVISION O.R.T.V.
- and -
CHUM LIMITED, ET AL
DATE OF HEARING: FEBRUARY 10, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER GILES, A.S.P.
DATED: FEBRUARY 24, 1997
APPEARANCES:
Mr. Alan D. Kurz
For the Plaintiff
Mr. David M. Reive
Mr. Mark S. Hayes
For the Defendants
CHUM Limited and Radio 1540 Limited
Ms. Tania Perlin
For the Defendant
| Russian Canadian Broadcasting |
Language TV Program Concord
SOLICITORS OF RECORD:
DALE, STREIMAN AND KURZ,
480 Main Street North,
Brampton, Ontario
L6V 1P8
For the Plaintiff
FASKEN, CAMPBELL, GODFREY
P.O. Box 20, Suite 4200
Toronto-Dominion Centre
Toronto, Ontario
M5K 1N6
For the Defendants
CHUM Limited and Radio 1540 Limited
Ms. Tania Perlin
218-180 Steeles Ave. W.
Thornhill, Ontario
L4J 2L1
For the Defendant
| Russian Canadian Broadcasting |
Language TV Program Concord
FEDERAL COURT OF CANADA
Court No.: T-338-96
Between:
PUBLIC RUSSIAN
TELEVISION O.R.T.V.
Plaintiff
- and -
CHUM LIMITED, ET AL
Defendants
REASONS FOR ORDER AND ORDER