Date: 20010613
Docket: T-686-99
Neutral Citation: 2001 FCT_ 651
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
[1] I will address first the various Orders sought by the Defendant.
[2] The Motion for an Order to compel the re-attendance of Donald Best for cross-examination of his affidavit is dismissed, in accordance with the Order of December 1, 2000.
[3] The failure of Mr. Best to answer questions on cross-examination to the satisfaction of the Defendant does not necessarily reflect negatively on the Defendant. The impact may be a negative assessment of the credibility of Mr. Best and of the Plaintiff's case.
[4] The motion for an order to determine if the Plaintiff has changed its name is dismissed since a corporate name change does not affect the potential liabilities of a corporate party and in any event, any name change of a corporate party is subject to the legislation governing the incorporation of that company.
[5] The motion for an order to allow the Defendant to examine the documents listed in the Plaintiff's Affidavit of Documents, at the office of Thompson Dorfman and Sweatman in Winnipeg, pursuant to Rule 228(1) of the Federal Court Rules, 1998, should be granted. It appears that from the Order of Justice Sharlow made on November 2, 1999 that counsel for the Plaintiff indeed made representations that most, if not all, of the documents listed in the Affidavit are available to the Defendant from the Office of Ms. Grande. Counsel for the Plaintiff indicated, at that time, that copies of such documents could be made available to the Defendant at the cost of the Defendant.
[6] It is ordered that the Defendant be allowed to examine the documents so held by Ms. Grande. If these documents are no longer available the parties are at liberty to reapply to the Court.
[7] The motion pursuant to Rule 167 is dismissed. That prayer for relief relates to the counter-claim filed by the Defendants and there is a jurisdictional problem in relation to same.
[8] As for the submission made by Mr. Dean Giles on behalf of Taylor McCaffrey Law Firm, leave is granted to the Defendants to discontinue the counter-claim against that party subject to an award of costs either being negotiated between the Defendants and Taylor McCaffrey or upon a taxation of costs.
[9] I turn now to the Plaintiff's Notice of Motion filed April 9, 2001. This concerns the payment of costs further to the Order of Mr. Justice Pelletier dated February 15, 2000. Mr. Anderson, on behalf of the Plaintiff, is now objecting to the failure of Mr. Levin to pay the costs associated with the examination of Mr. Best.
[10] Mr. Levin says that he understood he was responsible for one half of the costs of obtaining a transcript of that examination. Mr. Anderson says that the Court ordered an unequal payment of the costs, with the Plaintiff paying effectively twenty-five percent and Mr. Levin paying the balance. Unfortunately, the transcribing service marked the bill in such a way that apparently the Plaintiff and Mr. Levin were to pay fifty percent. Mr. Levin paid fifty percent but a balance of some $547.30 remains outstanding.
[11] The Plaintiff, through Mr. Anderson, made no objection to the payment made by Mr. Levin until this Motion was filed on April 9. No satisfactory explanation was offered about the delay in raising any problem about payment of that bill.
[12] Although I am sympathetic to Mr. Levin's opinion on this matter, I am constrained by the existing order of the Court about payment of these expenses. No motion has been brought to vary the Order and apparently no effort as made by Mr. Levin to seek clarification of its meaning from Justice Pelletier.
[13] In these circumstances, I am of the opinion that Mr. Levin is responsible for payment of the outstanding balance and he shall pay same before this matter is set down for trial. In any event, these costs will be recoverable if Mr. Levin succeeds at trial.
[14] I am not prepared to order that the Defence of the Defendants be stricken out or that the Defendants are enjoined from taking further steps until this balance has been paid.
[15] There will be no order as to costs in relation to either of these two motions.
"E. Heneghan"