Date: 20011115
Docket: T-686-99
Neutral Citation: 2001 FCT 1255
BETWEEN:
WIC PREMIUM TELEVISION LTD.
Plaintiff
-and-
ROY LEVIN a.k.a. ROY LEVINE, JOHN DOE, JANE DOE
and ANY OTHER PERSON OR PERSONS FOUND ON THE
PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES
AT 1830 DUBLIN AVENUE, WINNIPEG, MANITOBA WHO
OPERATE OR WORK FOR BUSINESSES CARRYING ON
BUSINESS UNDER THE NAME AND STYLE OR 'STARLINK'
'STARLINK INC.', 'STARLINK CANADA', 'STARLINK MANITOBA',
OR ONE OR MORE OF THEM,
ROY LEVINE a.k.a. STAR*LINK CANADA (1998), STARLINK INC., 3563716 MANITOBA LTD. a.k.a. STAR*LINK MANITOBA, and 3942121 MANITOBA LTD. a.k.a. STAR*LINK CANADA SATELLITE SERVICE
Defendants
HENEGHAN J.
[1] The Defendants have submitted a Notice of Motion for reconsideration of the Order dated September 19, 2001, and for additional relief. The Notice of Motion is submitted in writing and without personal appearance pursuant to The Federal Court Rules, 1998, rules 369, 397 and 167.
[2] The Notice of Motion was filed on October 1, 2001, together with the affidavit of Mr. Roy Levin and written submissions.
[3] On October 11, 2001, the Plaintiff filed its written representations in response to the Defendants' motion.
[4] The Notice of Motion sets out the grounds upon which the Defendants seek reconsideration of my Order dated September 19, 2001. These grounds are stated in the following manner:
1. The Honourable Court, However (sic), overlook or accidentally omitted the fact that the Defendant (Roy Levin) had filed for bankruptcy and was only discharged in March 2001. (Previously filed with court showing defendant has little or no assets)
2. The corporation 3942121 MB LTD. Is in severe financial difficulty.
3. The corporation Starlink Inc. has not made a profit for years and has less than $2,000.00 in its bank account.
4. Lou Levin is the only other person involved with these 2 corporations, and Madam Justice Sharlow denied the addition of Lou Levin as a defendant, due to his limited involvement and poor health.
5. The only person that can and has spoke for the companies, is Roy Levin, and with the Corporations inability to afford council they have opted to piggyback on the case against Roy Levin as their defense.
6. The request from the Plaintiff to require council for the Corporate Defendants would make more sense if they discontinued the case against Roy Levin and Starlink Canada 1998. As mentioned before Roy Levin has no means to pay council because of his bankruptcy and intends to continue representing himself and the sole proprietorship.
7. Since February of 2000 there has been no progress made by the Plaintiff to move forward in this case, and nothing at all has been done since the Defendants last motion for discontinuance earlier this year except to stall again by requesting the defendant retain council which the Plaintiff is fully aware is not viable. All of this is proof of the Plaintiffs intent to bankrupt the Defendant not prosecute. This is an infringement of the Defendant (Roy Levin) right to a speedy trial. With the facts, that A) Mr. Haave is no longer an officer of the Plaintiff and B) there has been o evidence whatsoever to substantiate claims for damages and C) Superchannel and Movie Max no longer broadcast it is the belief of the Defendant that this case should be dismissed, in accordance with rule 167.
8. The affidavits of Mr. Haave are no longer relevant to this case as he is no longer an officer of the Corporation.
[5] The Plaintiff notes that the Defendants are now referring to facts which were not submitted in response to the Plaintiff's motion for an order directing the corporate Defendants to appoint counsel. As well, the Plaintiff submits that the Defendants are effectively seeking a reversal of the Order made on September 19, 2001. The Plaintiff states its position as follows:
The plaintiff's position is that this so-called motion for reconsideration is an attempt (a) to introduce evidence which was available at the time that the original evidence and submissions were made and (b) to ask the Honourable Madame Justice Heneghan to sit on appeal of Her Ladyship's own order. Both of these motives are inappropriate and abuse the process of the Court.
[6] The Plaintiff does not reply to the other matters raised in the Defendants' motion except to say that, in light of the Order made on September 19, 2001, the motion is improper.
[7] I agree with the submissions made by the Plaintiff. Rule 397 provides as follows:
| 397(1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or (b) a matter that should have been dealt with has been overlooked or accidentally omitted. (2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
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397(1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes : a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier; b) une question qui aurait dû être traitée a été oubliée ou omise involontairement. (2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour. |
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[8] The rule allows for the correction of clerical errors or inconsistencies between the terms of an order and supporting reasons or attention to a matter that was inadvertently overlooked.
[9] None of these factors arise in the present case. The Order of September 19, 2001 corresponds with the Reasons issued the same day. The Defendants failed to advise or submit any evidence about the financial status of the corporate Defendants in earlier affidavits. At no prior time has the personal Defendant provided evidence about his assignment in bankruptcy.
[10] As noted by the Plaintiff in his submission, the filing of a notice of intention pursuant to the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended, has the legal effect of staying any proceedings against the person filing such notice of intention; see section 69(1)(a) of that Act.
[11] In light of my Order of September 19, 2001, the corporate Defendants are without standing to pursue any proceedings at this time. The individual Defendant lacks standing.
[12] The motion is dismissed, no order as to costs.
ORDER
The motion is dismissed, no order as to costs.
"E. Heneghan"
OTTAWA, Ontario
November 15, 2001
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-686-99
STYLE OF CAUSE: WIC Premium Television Ltd. v. Roy Levin et al
MOTION DEALT WITH IN WRITING WITHOUT APPERANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: November 15, 2001
WRITTEN REPRESENTATIONS BY:
Mr. William McKenzie FOR PLAINTIFF
Mr. Roy Levin FOR DEFENDANT
SOLICITORS OF RECORD:
Crawford, McKenzie, McLean & Wilford FOR PLAINTIFF Orillia, Ontario
Mr. Roy Levin FOR DEFENDANT Winnipeg, Manitoba