Date: 20020305
Docket: T-798-00
Montréal, Quebec, March 5, 2002
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
VIMONT LEXUS TOYOTA
A duly incorporated company having
its head office at 255 boul. St-Martin Est,
Laval, Quebec H7M 1Z1
Plaintiff
and
GABY HAJJAR
Residing and domiciled at 4373 rue Fafard,
Laval, Quebec H7T 1Z2
Defendant
Motion by the defendant for:
- an order setting aside the decision of the Prothonotary, Mr. Richard Morneau, dated February 1, 2002;
- an order certifying the defendant's examination for discovery, which was held on April 19, 2001.
[Rules 51 and 359 of the Federal Court Rules, 1998]
ORDER
For the reasons filed, the appeal is dismissed with costs, which are awarded in the amount of $1,500 payable by the defendant.
"François Lemieux"
Judge
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20020305
Docket: T-798-00
Neutral Citation: 2002 FCT 242
BETWEEN:
VIMONT LEXUS TOYOTA
A duly incorporated company having
its head office at 255 boul. St-Martin Est,
Laval, Quebec H7M 1Z1
Plaintiff
and
GABY HAJJAR
Residing and domiciled at 4373 rue Fafard,
Laval, Quebec H7T 1Z2
Defendant
REASONS FOR ORDER
LEMIEUX J.
[1] This is an appeal by the defendant in this simplified action from the decision rendered February 1, 2002 by the Prothonotary, Richard Morneau, allowing after a hearing the plaintiff's motion for dismissal of the amended statement of defence and for default judgment on the ground that the defendant had not complied with the order of the Court dated October 1, 2001 to proceed and complete the examinations for discovery in writing following the amendments of the pleadings of both parties.
[2] The defendant argues that the reason cited by the Prothonotary is erroneous since he had already been examined for discovery on April 19, 2001, an undeniable fact.
[3] The plaintiff replies that the examination for discovery held on April 19, 2001 is of no relevance since the examinations that were ordered on October 1, 2001 were ordered following the amendments to the claim and the defence. The written questions submitted to the defendant, which so far remain unanswered, are intended only to provide further details concerning the new material in the amended statement of defence.
[4] In his order of February 1, 2002, the Prothonotary states:
[Translation]
The order of this Court dated October 1, 2001 ordered the parties to proceed with the examinations for discovery by November 21, 2001. In this regard, the defendant was served on October 15, 2001 with a written examination to which he was to reply on or before November 15, 2001. Still without any reply by the defendant to this written examination as of November 2001, the plaintiff reminded the defendant's counsel that he was to take action accordingly, failing which the motion now under examination would be filed. The examination was still without reply as of December 10, 2001, so the plaintiff filed the promised motion. In addition to not replying to the examination as of December 10, 2001, the defendant did not even go to the trouble of filing a respondent's record in opposition to the moving party's record. The hearing of this motion was adjourned to January 30, 2002. On that date, the defendant and his counsel had still made no change in the situation as previously described.
This attitude and conduct of the defendant are completely unacceptable.
I have no choice, therefore, but to allow the motion before me. The defendant's amended statement of defence filed October 15, 2001 is struck out and default judgment is awarded, with costs, in favour of the plaintiff. The plaintiff may proceed by written ex parte motion in establishing the quantum of its damages.
Analysis
[5] I must exercise my own discretionary authority in rehearing the matter de novo since the Prothonotary's order has to do with a question that is decisive to the outcome of the main proceeding. (See Canada v. Aqua-Gem Investments Ltd. [1993] 2 F. C. 425, p. 463 F.C.A.)
[6] The essential issue in this appeal is this: Are the dismissal of its defence and judgment by default an appropriate penalty in the circumstances for its refusal to obey the Prothonotary's order dated October 1, 2001 requiring the holding of a written examination for discovery and that it be completed by November 21, 2001?
[7] It is important to note that the defendant did not attack the order of October 1, 2000 containing these requirements.
[8] The defendant argues that the order under review lacks proportionality since it eliminates his defence. If fault there be, it is the fault of his counsel who admits that he does not understand the rules of this Court.
[9] I do not accept the excuses of the defendant and his counsel. This is not a lack of understanding of the Court's rules but rather a form of contempt of court emanating from non-compliance with the order.
[10] In my opinion, justice requires compliance with the orders of the Court and, should a party find itself unable to fulfill them, it should obtain an amendment, before it finds itself in non-compliance.
[11] The defendant did not react at all to the plaintiff's notice of motion served on December 7, 2001, for the purpose of obtaining the dismissal of his statement of defence and a default judgment for failing to comply with the order of October 1, 2001.
[12] The plaintiff had warned the defendant in writing on November 15, 2001 that he was in default of replying to the written examination. It asked that he comply by November 21, 2001 failing which it would move for dismissal and judgment by default.
[13] Before the Prothonotary and before this Court, the defendant held to his course and did not wish to recognize the obligation imposed by the Court.
[14] During the pleadings before me, he offered in reply an affidavit that apparently replies to the questions that were asked. I refused to allow the filing of this last-minute affidavit, which had not been served on the plaintiff.
[15] The defendant's conduct is unacceptable.
[16] The appeal is dismissed with costs awarded in the amount of $1,500 payable by the defendant.
"François Lemieux"
Judge
Montréal, Quebec
March 5, 2002
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020305
Docket: T-798-00
Between:
VIMONT LEXUS TOYOTA
Plaintiff
and
GABY HAJJAR
Defendant
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-798-00
STYLE: VIMONT LEXUS TOYOTA
Plaintiff
and
GABY HAJJAR
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 4, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: March 5, 2002
APPEARANCES:
Mereille Tabib FOR THE PLAINTIFF
Nabih Srougi FOR THE DEFENDANT
SOLICITORS OF RECORD:
Stikeman Elliott FOR THE PLAINTIFF
Montréal, Quebec
Nabih Srougi FOR THE DEFENDANT
St-Laurent, Quebec