Date: 20000621
Docket: T-3049-92
BETWEEN:
THE BUSINESS DEPOT LTD.
Plaintiff
-and-
THE CANADIAN OFFICE DEPOT INC., OD INTERNATIONAL,
INC., OFFICE DEPOT, INC. and DAVID FUENTE
Defendants
-and-
JACK BINGLEMAN, STAPLES, INC., and
THOMAS G. STEMBERG
Defendants by Counterclaim
REASONS FOR ORDER
HENEGHAN J.
[1] Before addressing the merits of this motion I want to comment on the threshold issue which has to be spoken to and that is the question whether the Appellant in the present motion was late in bringing the appeal. This situation arises because
Prothonotary Lafrenière made a decision on February 29th, 2000. However, it was not until June 2nd, 2000, that the Order was made after the form of the Order has been finalized.
[2] Upon reviewing the material before me and having heard the submissions of counsel, and having regard to the Case Law, I am of the opinion that the appeal has been taken in a timely basis. I am of the view that the Order in this matter was made on June 2nd, 2000, the day on which it was signed, and that the Notice of Appeal by way of notice of motion was filed within 10 days from the day that the Order was filed. The notice of motion was filed on June 12th, 2000. I have looked at a couple of other cases in addition to the ones that I was referred to here on the question of timing, how we calculate the time and I am going to refer counsel to a decision of the Federal Court of Appeal in Metodieva v. Canada (Dept. of Employment and Immigration) (1991),132 N.R. 38 (F.C.A.) and I am going to read briefly from paragraph 3 from the judgment which was written by Justice Décary:
| The Rules and the case law in this court are quite clear. Once an order has been signed by a judge, it is a final order (Rule 337(4)) which becomes effective on the day it is entered in the Registry (Rule 338(2)). |
[3] That is the only sentence I am quoting from paragraph 3 but it seems to make sense to me that when the Order is signed, that is the date for calculation of time for bringing an appeal. I have accepted that the Notice of Appeal in this case is timely.
[4] As for the merits of the appeal, this is an appeal pursuant to Rule 51 of the Federal Court Rules 1998. It is an appeal of the decision of Prothonotary Lafrenière which is dated June 2nd, 2000, and in this motion the Appellant argues that the Prothonotary erred in his decision concerning the outstanding questions to be answered by representatives of the Plaintiff and also in his interpretation of the relevance of the documents for which the Defendant seeks production.
[5] Having reviewed the materials submitted and again, having heard the submissions for counsel, and having regard to the decision of the Federal Court of Appeal inCanada v. Aqua-Gem Investments Ltd., [1993], 2 F.C. 425, I am of the opinion that there is no basis on which I could or should disturb the order of the Prothonotary made on June 2nd, 2000, and accordingly, the appeal is dismissed.
"Elizabeth Heneghan"
| J.F.C.C. |
Toronto, Ontario
June 21st, 2000.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-3049-92 |
| STYLE OF CAUSE: THE BUSINESS DEPOT LTD. |
-and-
THE CANADIAN OFFICE DEPOT
INC., OD INTERNATIONAL, INC.,
OFFICE DEPOT, INC. and DAVID
FUENTE
-and-
JACK BINGLEMAN, STAPLES, INC., and
THOMAS G. STEMBERG
| DATE OF HEARING: MONDAY, JUNE 19, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: WEDNESDAY, JUNE 21, 2000
| APPEARANCES BY: Mr. Harvey Strosberg, Q.C. and |
Mr. Jonathan G. Colombo
| For the Plaintiff |
| Mr. Neil R. Belmore, and |
| Mr. Peter W. Choe |
| For the Defendants |
| SOLICITORS OF RECORD: BERESKIN & PARR |
Barristers & Solicitors
Box 401, 10 King Street West
Toronto, Ontario
M5H 3Y2
| For the Plaintiff |
GOWLINGS STRATHY & HENDERSON
Barristers & Solicitors
Commerce Court West, Suite 4900,
Toronto, Ontario
M5L 1J3
For the Defendants
FEDERAL COURT OF CANADA
Date: 20000621
Docket: T-3049-92
BETWEEN:
| THE BUSINESS DEPOT LTD. |
Plaintiff
-and-
THE CANADIAN OFFICE DEPOT
INC., OD INTERNATIONAL, INC.,
OFFICE DEPOT, INC. and DAVID
FUENTE
Defendants
-and-
JACK BINGLEMAN, STAPLES, INC.,
and THOMAS G. STEMBERG
Defendants by Counterclaim
| REASONS FOR ORDER |