Date: 20040226
Docket: T-2074-02
Citation: 2004 FC 286
Toronto, Ontario, February 26th, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
VIDEO VOX ENTERPRISES INC. and
TVB (OVERSEAS) LIMITED
Plaintiffs
and
XIANG RUI LIN carrying on business as ZHONG HUA VIDEO CENTRE and
AI HUA CHEN (also known as Ai Hua Lin) and
6045324 CANADA INC. carrying on business as ZHONG HUA VIDEO CENTRE
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion by the Plaintiffs to strike out the defence of Xiang Rui Lin ("Lin') and to enter default judgment for the Plaintiffs.
[2] The Plaintiffs indicated that they had been attempting to schedule discoveries in this matter since November 2003, but no convenient date for the Defendant Lin had been found.
[3] The Plaintiffs issued a direction to attend pursuant to Rule 91 of theFederal Court Rules, 1998 requiring Lin to attend an Examination for Discovery to be held on Thursday, February 5th, 2004 at 10:00 a.m. LiN failed to appear.
[4] By letter dated January 19th, 2004, Lin's solicitor indicated that they would be available any day during the week of February 16th, 2004 or on February 23rd or 24th, 2004.
[5] There had been previous exchanges with respect to dates for the Examination for Discovery.
[6] Issue: Should the Lin statement of defence be struck pursuant to Rule 97 of the Federal Court Rules, 1998?
Analysis and Decision
[7] Federal Court Rule 97 reads as follows:
97. Failure to attend or misconduct - Where a person fails to attend an oral examination or refuses to take an oath, answer a proper question, produce a document or other material required to be produced or comply with an order made under Rule 96, the Court may
(a) order the person to attend or re-attend, as the case may be, at his or her own expense;
(b) order the person to answer a question that was improperly objected to and any proper question arising from the answer;
(c) strike all or part of the person's evidence, including an affidavit made by the person;
(d) dismiss the proceeding or give judgment by default, as the case may be; or
(e) order the person or the party on whose behalf the person is being examined to pay the costs of the examination.
[8] Rule 97 would allow the relief requested by the Plaintiffs. After having read the materials filed by the parties and after considering the parties' oral representations I am not prepared to strike the defence of the Defendant Lin and to enter default judgment. There were attempts to schedule discovery since November 2003 albeit it being without success for various reasons. I am however prepared to order that discoveries in this matter be completed by March 17th, 2004.
[9] The Plaintiffs request that I grant an extension of the time with respect to a status review. I do not believe that it is necessary. There is no evidence that a Notice of Status Review has been issued and the discovery will take place by March 17th, 2004.
[10] The Plaintiffs' motion is dismissed.
[11] There shall be no order as to costs.
ORDER
THIS COURT ORDERS that
1. The Plaintiffs' motion is dismissed.
2. Examination for Discovery in this proceeding shall take place by March 17th, 2004.
3. There shall be no order as to costs.
"John A. O'Keefe'
J.F.C.
I HEREBY CERTIFY that the above document is a true copy of the original filed of record in the Registry of the Federal Court the __________ day of _____________ A.D. 2004
Dated this _______ day of _______________, 2004
_______________________________
Name, Title of Officer
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2074-02
STYLE OF CAUSE: VIDEO VOX ENTERPRISES INC. and
TVB (OVERSEAS) LIMITED
Plaintiffs
and
XIANG RUI LIN carrying on business as ZHONG HUA
VIDEO CENTRE and AI HUA CHEN (also known as Ai
Hua Lin) and 6045324 CANADA INC. carrying on
business as ZHONG HUA VIDEO CENTRE
Defendants
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 23, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: FEBRUARY 26, 2004
APPEARANCES:
|
|
FOR THE PLAINTIFFS
|
|
|
FOR THE DEFENDANTS |
SOLICITORS OF RECORD:
|
Barristers & Solicitors Toronto, Ontario |
FOR THE PLAINTIFFS |
|
Toronto, Ontario |
FOR THE DEFENDANTS |
FEDERAL COURT
Date: 20040226
Docket: T-2074-02
BETWEEN:
VIDEO VOX ENTERPRISES INC. and
TVB (OVERSEAS) LIMITED
Plaintiffs
and
XIANG RUI LIN carrying on business as ZHONG HUA VIDEO CENTRE and
AI HUA CHEN (also known as Ai Hua Lin) and
6045324 CANADA INC. carrying on business as ZHONG HUA VIDEO CENTRE
Defendants
REASONS FOR ORDER
AND ORDER