Date: 20000113
Docket: A-81-98
CORAM: STONE, J.A.
LÉTOURNEAU, J.A.
ROTHSTEIN, J.A.
BETWEEN:
HARRY R. FRIEDRICH, HOME TECHNICS LTD.,
TECHNICAL CERAMICS INDUSTRIES INC.,
HAMILTON PROFILE EXTRUDERS INC., FRIEDRICH INDUSTRIES INC.,
ASSEM-LAB INC., I.T. ELECTRONIC CERAMICS INC., F & T TOOLING INC.,
HIGH-TEC TRUCK LEASING LTD., OMEMEE DRIVER
SERVICE LTD., CAD CAM CANADA LTD., and
FRIEDRICH TECHNOLOGIES INC.
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
Heard at Toronto, Ontario on Thursday, January 13, 2000
Judgment delivered at Toronto, Ontario on Thursday, January 13, 2000
REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A.
Date: 20000113
Docket: A-81-98
CORAM: STONE, J.A.
LÉTOURNEAU, J.A.
ROTHSTEIN, J.A.
BETWEEN:
HARRY R. FRIEDRICH, HOME TECHNICS LTD.,
TECHNICAL CERAMICS INDUSTRIES INC.,
HAMILTON PROFILE EXTRUDERS INC., FRIEDRICH INDUSTRIES INC.,
ASSEM-LAB INC., I.T. ELECTRONIC CERAMICS INC., F & T TOOLING INC., HIGH-TEC TRUCK LEASING LTD., OMEMEE DRIVER
SERVICE LTD., CAD CAM CANADA LTD., and
FRIEDRICH TECHNOLOGIES INC.
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Thursday, January 13, 2000)
STONE J.A.
We are all of the view that the appeal should be allowed, the order of the Motions Judge of February 5, 1998 set aside and the order of the Trial Division of March 8, 1996, dismissing the appellants" action, rescinded. This latter order was in the nature of case management under the former rules of the Court.
It is to be noted, at the same time, that the order of March 8, 1996 was made due to the appellants" failure to respond to a notice sent by the Court prior thereto calling upon the appellants within a specified period of time to move for directions in the action failing which the action would be dismissed, and also the fact that due to no fault of their own the appellants did not receive that notice. As of the date the order in question was made the action had been outstanding for some 8 years, and no steps had been taken to advance it towards trial.
In these peculiar circumstances, in our view, the appellants should now be required to show cause before the Trial Division as to whether the action should be dismissed for delay which transpired from the commencement thereof. This way of proceeding will enable the respondent, if she can to do so, to demonstrate that she has suffered prejudice in her ability to properly defend the action. It would also place the appellants in approximately the same position that they would have been in had they received the notice that was sent by the Court prior to the making of the March 8, 1996 order.
The appeal will be allowed, the order of the Motions Judge of February 5, 1998 set aside, the order of the Trial Division of March 8, 1996 rescinded and the appellants required to show cause in the Trial Division on a date to be fixed by that Division as to why the action should not be dismissed for delay. In the circumstances, there will be no order as to costs.
"A. J. Stone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-81-98 |
| STYLE OF CAUSE: HARRY R. FRIEDRICH, HOME TECHNICS LTD., TECHNICAL CERAMICS INDUSTRIES INC., HAMILTON PROFILE EXTRUDERS INC., FRIEDRICH INDUSTRIES INC., ASSEM-LAB INC., I.T. ELECTRONIC CERAMICS INC., F & T TOOLING INC., HIGH-TEC TRUCK LEASING LTD., OMEMEE DRIVER SERVICE LTD., CAD CAM CANADA LTD., and FRIEDRICH TECHNOLOGIES INC. |
Appellants
| - and - |
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA |
Respondent
DATE OF HEARING: THURSDAY, JANUARY 13, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: STONE J.A. |
Delivered at Toronto, Ontario on Thursday, January 13, 2000
APPEARANCES: Mr. William Innes and
| Mr. Andrew Skodyn |
| For the Appellants |
Ms. Wendy Linden
| For the Respondent |
| SOLICITORS OF RECORD: Genest Murray DesBrisay Lamek |
| Barristers & Solicitors |
| 130 Adelaide Street West |
| Suite 700 |
| Toronto, Ontario |
| M5H 4C1 |
| For the Appellants |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF APPEAL
Date: 20000113
Docket: A-81-98
BETWEEN:
| HARRY R. FRIEDRICH, HOME TECHNICS LTD., TECHNICAL CERAMICS INDUSTRIES INC., HAMILTON PROFILE EXTRUDERS INC., FRIEDRICH INDUSTRIES INC., ASSEM-LAB INC., I.T. ELECTRONIC CERAMICS INC., F & T TOOLING INC., HIGH-TEC TRUCK LEASING LTD., OMEMEE DRIVER SERVICE LTD., CAD CAM CANADA LTD., and FRIEDRICH TECHNOLOGIES INC. |
Appellants
| - and - |
| HER MAJESTY THE QUEEN IN RIGHT OF CANADA |
Respondent
| REASONS FOR JUDGMENT |
| OF THE COURT |