Date: 20010810
Docket: T-79-01
Neutral citation: 2001 FCT 873
BETWEEN:
COLUMBIA PICTURES INDUSTRIES ET AL.
Plaintiffs
- and -
STÉPHANE CARON
- and -
MARIO CARON
Defendants
[1] This is an appeal from a decision of Richard Morneau, prothonotary, on April 23, 2001 which, pursuant to Rule 181(2) of the Federal Court Rules, 1998 ("the Rules"), dismissed the defendants' motion asking the Court to order the plaintiffs to serve and file further particulars on certain allegations contained in their action.
[2] The prothonotary's order reads as follows:
[TRANSLATION]
In view of the order by this Court on March 21, 2001 and the filing of the defendants' defence on March 30, 2001, this motion becomes void and is dismissed, costs to follow.
FACTS
[3] On January 17, 2001 the plaintiffs filed an action against the defendants. They alleged that the defendants were involved in the illegal sale of cable television decoders and that this activity was an infringement of the plaintiffs' rights and intellectual property, for which the defendants should pay damages.
[4] In particular, the plaintiffs alleged that the defendants modified the decoders, which give access to television signals distributing the plaintiffs' films.
[5] On February 23, 2001 the defendants filed a motion for an extension of the deadline for submitting their defence.
[6] On March 7, 2001, two weeks before dismissal of the application for an extension of time, the defendants filed a motion for particulars.
[7] On March 21, 2001 the prothonotary dismissed the motion for an extension of time to file the defence, but authorized the defendants to file their defence before April 2, 2001.
[8] The defendants' defence was filed on March 30, 2001 before the decision on the motion for particulars.
[9] In para. 21 of their defence they alleged that they reserved the right to amend their defence following receipt of the particulars requested by the motion on March 7, 2001, which could not be obtained before expiry of the deadline for filing the instant defence.
STANDARD OF REVIEW
[10] In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, at 463, per MacGuigan J.A., the Federal Court of Appeal said the following:
. . . discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
PRINCIPLES
[11] The following principles have been laid down in the decided cases:
(1) in Caterpillar Tractor Co. v. Babcock Allatt Limited, [1983] 1 F.C. 487, Addy J. wrote the following at 490:
Generally speaking, where a party pleads in full reply and rebuttal to a pleading of the opposite party, he is precluded from objecting to the other party's pleading or requesting particulars for the purpose of pleading further at a later date.
(2) however, in the proper circumstances the Court, at a defendant's request, may order particulars of allegations contained in a plaintiff's statement of claim after a defence has been served and filed (see Ciba-Geigy Canada Ltd. v. National Contact To Go Ltd. (1992), 41 C.P.R. (3d) 131 and Addison-Wesley Publishing Ltd. et al. v. Kinko's Copies Canada Ltd. (1987), 18 C.P.R. (3d) 121);
(3) the Court will grant such a motion if it appears to the judge or the prothonotary that it is in the interests of justice to do so in order to define the point at issue more clearly and facilitate the conduct of the examination for discovery.
CONCLUSION
[12] The prothonotary's decision was very brief and is open to interpretation. First, it may be the prothonotary decided that he had no discretion to grant the defendants' motion for particulars: if that is so, the prothonotary made an error of law. Second, the prothonotary may have decided that in the particular circumstances before him there was no reason to justify granting the motion for particulars: if that was so, I cannot intervene.
DISPOSITION
[13] In view of the ambiguity in the order of April 23, 2001 this appeal is allowed: costs to follow. The matter is referred back to the prothonotary for him to reconsider the motion for particulars applying the relevant rules mentioned above.
|
François Lemieux J U D G E |
Ottawa, Ontario
August 10, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS [sic] AND SOLICITORS ON [sic] THE RECORD
COURT FILE NO.: T-79-01
STYLE OF CAUSE: COLUMBIA PICTURES INDUSTRIES
ET AL. v. STÉPHANE CARON ET AL.
PLACE OF HEARING: Quebec, Quebec
DATE OF HEARING: June 15, 2001
REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: August 8, 2001
APPEARANCES:
Mr. Robert MacFarlane & Mr. Jonathan Colombo FOR PLAINTIFF
Mr. Roderic Hinton FOR DEFENDANT
SOLICITORS OF RECORD:
Daniel Ovadia FOR PLAINTIFF
Montreal, Quebec
Guy Bertrand & Associés FOR DEFENDANT
Quebec, Quebec
Date: 20010810
Docket: T-79-01
Ottawa, Ontario, August 10, 2001
Before: François Lemieux J.
BETWEEN:
COLUMBIA PICTURES INDUSTRIES ET AL.
Plaintiffs
- and -
STÉPHANE CARON
- and -
MARIO CARON
Defendants
ORDER
For the reasons stated, the appeal is allowed with costs to follow. The matter is referred back to the prothonotary for him to reconsider the motion for particulars in light of the relevant rules set out in the reasons.
|
François Lemieux J U D G E |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.