Toronto, Ontario, March 15, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
cob FPTV - FESTIVAL PORTUGUESE TELEVISION and
FRANK ALVAREZ
and
1548951 ONTARIOLIMITED carrying on business as O BOLA SPORTS BAR,
O AVIAO BAR & GRILL INC. operating as O AVIAO RESTAURANT
and 827704 ONTARIO LIMITED operating as WHITE ROSE BAR,
WHITE ROSE BAR AND CAFÉ LIMITED,
PASQUALE D'ALESSIO carrying on business as WHITE ROSE BAR
1205250 ONTARIO INC., carrying on business as NEW CASA ABRIL
RESTAURANT & CATERING
CASA EUROPA SPORTS BAR INC., and,
SPORTING CLUB IDEAL OF BRAMPTON
Defendants
(Ontario)
and
3975592 CANADA INC. carrying on business as
RESTAURANT BEIRAMAR,
Defendant
(Quebec)
REASONS FOR ORDER AND ORDER
THE MOTIONS
[1] There are two motions before me. In one, the Defendant 1205250 Ontario Inc., carrying on business as New Casa Abril Restaurant and Catering (1205250) is seeking an order extending the time to file its defence beyond the date previously fixed by order of Prothonotary Milczynski, dated September 12, 2005 (the September 12 Order).
[2] In the second motion 1395047 Ontario Inc., carrying on business as FPTV - Festival Portuguese Televisia and Frank Alvarez (FPTV) is seeking an order granting judgment against 1205250 in accordance with the September 12, Order or, in the alternative, striking the defence of 1205250 for failure to comply with the September 12 Order and the interlocutory injunction granted by Justice Campbell on February 14, 2005 (the Injunction).
[3] As part of the second motion FPTV is also asking the Court to direct that Mr. Janvario Barros and 1205250 attend at a time and date to be fixed by the Court to hear proof of contempt against each of them as charged by FPTV.
BACKGROUND
[4] By way of an agreement with Sport T.V. Portugal S.A. effective August 27, 2004, FPTV claims to hold all broadcast and copyright to the 2004/2005 and 2005/2006 seasons of the Portuguese Premiere League Soccer known as the Superliga.
[5] The Plaintiffs commenced this action by way of Statement of Claim on or about February 7, 2005.
[6] The Plaintiffs proceeded to obtain an interlocutory injunction which was granted by Justice Campbell on February 14, 2005, which included the business operating at 475 Oakwood Avenue as New Casa Abril, and restraining it from showing any of the 2004/2005 and 2005/2006 Superliga matches without the written authorization of the Plaintiffs. The Injunction states that it applies to any persons associated with the business, including any person with knowledge of the Injunction.
[7] The Injunction was served personally on New Casa Abril at 475 Oakwood Avenue on February 21, 2005.
[8] The business operating as New Casa Abril had been investigated by employees of FPTV whose evidence is that it has repeatedly shown Superliga matches on the premises without the consent of the Plaintiffs.
[9] 1205250 obtained counsel and consented to an order amending these proceedings in the name of 1205250 and agreeing to serve and file a Defence within 40 days of the date of the September 12, Order.
[10] Despite providing a consent in this regard no Defence was filed within that 40 day period and the Statement of Defence was rejected by the court registry.
[11] As part of the September 12, Order, 1205250 also confirmed that it was bound by the Injunction.
[12] The September 12 Order was consented to by counsel for 1205250 on September 9, 2005. A representative of FPTV attended at the premises of New Casa Abril on September 10, 2005 and witnessed that it was showing a Superliga match in breach of the September 12, Order and the Injunction.
[13] Representatives of FPTV have attended at the premises of 1205250 on several other occasions subsequent to the September 12, Order being issued and have entered and witnessed that 1205250 has continued to exhibit Superliga matches to its patrons using an illegal satellite system.
EXTENSION OF TIME TO FILE DEFENCE BY 1205250
[14] 1205250 is seeking an extension of time within which to file its defence under Rule 8 of the Federal Court Rules, 1998.
[15] Rule 8 clearly contemplates that such a motion may be brought before or after the end of the period sought to be extended.
[16] The period in this case was fixed by the September 12, Order of Prothonotary Milczynski.
[17] The jurisprudence (see, for example, Canada (A.G.) v. Hennelly (1999), 244 N.R. 399 (Fed. C.A.) establishes that is order to obtain an extension of time an applicant must establish:
(a) A continuing intention to pursue the application;
(b) That the application has some merit;
(c) That no prejudice arises from the delay; and
(d) That a reasonable explanation for the delay exists.
[18] Grewal v. Canada(M.E.I.) [1985] 2 F.C. 263, 63 N.R. 106 (Fed. C.A.) further provides that the underlying consideration on an application to extend time is that justice be done between the parties so that regard should be had to the reasons for the delay and whether there is an arguable case.
[19] In a case such as the present where the period of time is fixed by a peremptory order, the justification required to excuse the delay is set at a very high level and requires a clear demonstration that there was no intention to ignore the order and that the failure to obey was due to extraneous circumstances. See Sarasin Consultadoria E. Services LDA v. Roox's Inc., 2003 Carswell Nat 2577, 2003 FC 1010.
[20] In the present case, the affidavit evidence filed by 1205250 shows there was a notation on the file that the defence had to be served and filed by October 25, 2005 to meet the terms of the September 12, Order.
[21] On October 24, 2005, the defence was served on Counsel for FPTV and a copy was provided, together with an affidavit of service, to a process server for filing with the Court.
[22] On October 27, 2005, counsel for 1205250 learned that the Court had not accepted the defence for filing.
[23] The reason given by 1205250 for missing the deadline is that "the failure to file the statement of defence was due to an administrative oversight" by Counsel for 1205250.
[24] So the evidence before me suggests a continuing intention to pursue the defence, that it was served within the period set by the September 12, Order, but that it was not filed with the Court in time to meet the deadline. There is no suggestion of prejudice to FPTV and there is no suggestion that the defence has no merit.
[25] Under these circumstances, I consider that 1205250 has satisfied the jurisprudence for an extension of time and the Statement of Defence should be filed within 5 days of the date of this Order.
FPTV MOTION
[26] Because I consider it appropriate that 1205250 be allowed to file its statement of defence, it follows that I do not believe FPTV should be granted judgment in accordance with the September 12, Order or that the defence be struck for failure to comply with that Order and the Injunction granted by Justice Campbell.
[27] This brings me to the contempt issues.
[28] Under Rule 467 of the Federal Court Rules, 1998 a show-cause order will be granted where there is prima facie evidence of a wilful refusal to comply with a Court order. See. R. v. Perry [1982] 2 F.C. 519. 41 N.R. 249 (C.A.).
[29] Mennes v. Canada (Correctional Services), 2001 Carswell Nat 1230, 2001 FCT 571, tells us that a show cause motion requires proof of a court order, proof of the respondents knowledge of the order, and proof of deliberate flouting of the order.
[30] In the present case, Mr. Barros of 1205250 confirms in his own affidavit that "I was not aware of the order of Mr. Justice Campbell dated February 14, 2005 until I retained Mr. Binavince to act for 1205250."
[31] Mr. Binavince was engaged by 1205250 to handle the motion that came before Prothonotary Milczynski on September 12, 2005. That motion was consented to by 1205250 on September 9, 2005 and it ordered 1205250 to be bound by "the terms of the interlocutory injunction ordered by this Court by the Honourable Justice D.R. Campbell on February 14, 2005".
[32] As the very latest then, as FPTV argues, Mr. Barros and 1205250 must have been aware of the Injunction by September 9, 2005 when Mr. Binavince was retained.
[33] The affidavit evidence filed with this motion by FPTV from Mr. Bon Falcone and Mr. and Mrs. Aires Whytton Da Silva indicates a flouting of the Injunction by Mr. Barros and 1205250 after Mr. Barnes and FPTV became aware of the Injunction. Hence, it seems clear to me that FPTV has established a case for a show-cause hearing in accordance with Rule 467.
ORDER
THIS COURT ORDERS that
1. 1205250 is granted an extension of time within which to file its Statement of Defence, which shall be done within 5 days of the date of this Order.
2. Mr. Janvario Barros and 1205250 Ontario Inc., carrying on business as New Casa Abril Restaurant and Catering shall appear before a Judge of this Court on Monday, May 29, 2006 during general motions in Toronto prepared to hear proof of their contempt of Justice Campbell's Order of February 14, 2005 and the Order of Prothonotary Milczynski of September 12, 2005 in that, notwithstanding those orders, they have continued to show 2004/2005 and 2005/2006 Superliga matches at the premises of New Casa Abril located at 475 Oakwood Avenue, Toronto, Ontario M6E 2WA as alleged by FPTV in the materials filed with this motion, and that they be prepared to present any defence which they may have.
3. No order is made as to costs.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-212-05
STYLE OF CAUSE: 1395047 ONTARIO INC. cob FPTV - FESTIVAL PORTUGUESE TELEVISION and FRANK ALVAREZ
Plaintiffs
and
1548951 ONTARIO LIMITED carrying on business as O BOLA SPORTS BAR, ET AL.
Defendants (Ontario)
and
3975592 CANADA INC. carrying on business as
RESTAURANT BEIRAMAR,
Defendant (Quebec)
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 13, 2006
APPEARANCES:
Mr. Kevin W. Fisher FOR THE PLAINTIFFS
Mr. Julian Binavince FOR THE DEFENDANTS
SOLICITORS OF RECORD:
Mr. Kevin W. Fisher FOR THE PLAINTIFFS
Basman Smith LLP Barristers and Solicitors
Toronto, Ontario
Mr. Julian Binavince FOR THE DEFENDANTS
Ricketts, Harris LLP Barristers and Solicitors
Toronto, Ontario