BETWEEN:
WINNIPEG ENTERPRISES CORPORATION
and
JOHNSTON SPORT ARCHITECTURE INC.
and
ASTROTURF SURFACES CANADA LTD.
and
Heard at Montréal, Quebec, on February 20, 2007.
Judgment delivered at Ottawa, Ontario, on March 7, 2007.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: DESJARDINS J.A.
NADON J.A.
Docket: A-279-06
Citation: 2007 FCA 95
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NADON J.A.
BETWEEN:
WINNIPEG ENTERPRISES CORPORATION
and
JOHNSTON SPORT ARCHITECTURE INC.
and
ASTROTURF SURFACES CANADA LTD.
Appellants
and
FIELDTURF (IP) INC.
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] This is an appeal from the order of Harrington J. dismissing an appeal from an order of Prothonotary Morneau (T-350-03, May 12, 2006), which was made in his capacity as case manager pursuant to Rule 385(2). The respondent (the plaintiff in a patent infringement action) was ordered to explain why it had failed to comply with a schedule set out on July 29, 2005. After examining the written submissions of the parties, the Prothonotary allowed the matter to continue and he set out a new timetable.
[2] The appellants (the respondents and counter-claimants in the action) appealed the Prothonotary’s order to Harrington J. At the same time they filed a motion under Rule 167 for dismissal of the proceeding for delay. The motion for dismissal and the notice of appeal were joined in a document entitled “Notice of Motion in appeal of an order from a Prothonotary and Notice of Motion for dismissal for delay”. The fact that counsel says that his motion for dismissal had been ready for some time prior to the status review is of no consequence: as far as the Court is concerned, it is the time of filing of the motion which is relevant, not the time of its alleged preparation. The fact is, simply, that when the motion for dismissal was filed, status review had already been ordered and, furthermore, it had already been ruled upon.
[3] The Judge dismissed the appeal. He also dismissed the motion for dismissal as being premature.
The Status Review
[4] The Judge found that the standard of review to be applied was that of “patently wrong”. He was of the view that the impugned decision was not vital to the final issue of the case. One of the grounds he relied on was that even if the action were dismissed for want of prosecution, a fresh action would not be time-barred.
[5] This last ground is irrelevant. The issue on a status review is whether the proceeding should be allowed to continue, not whether it could be started over again if it were to be dismissed for delay. In any event there is a real possibility that the filing of a new proceeding would be struck out on the ground that it is an abuse of process (see Sauvé v. Canada, 2002 FCT 721).
[6] Contrary to the Judge’s findings, a decision made on a status review is vital to the final issue of the case because the prothonotary may have ended up dismissing the action for delay (see Rule 382(2)(c). As stated in Canada v. Aqua-Gem Investments Ltd. (C.A.), [1993] 2 F.C. 425 (C.A.) at paragraph 98 (QL), a decision which can be either interlocutory or final depending on how it is decided, even if interlocutory because of the result, must nevertheless be considered vital to the final resolution of the case.
[7] This Court has further held, in Merck & Co. Inc. v. Apotex Inc., 2003 FCA 488, [2004] 2 F.C.R. 459, at paragraphs 40 and 41, that the rule applies even where the decision was rendered by a prothonotary in his capacity as case manager. I appreciate that the status review, here, is not one ordered by the court through the mechanical application of rule 380, but one ordered by a prothonotary in his management function under rule 385(2), but the effect of the decision on the rights of the parties is the same.
[8] Because the Judge relied on an irrelevant consideration and did not apply the proper test, this Court must put itself in his shoes and exercise its own discretion de novo.
[9] The test on status review under Rule 382 was set out in Stoney Band v. Canada,2005 FCA 15, [2005] F.C.J. No. 33 (C.A.) (QL). The onus is on the plaintiff to show: 1) the reasons why the case has not moved forward faster and whether those reasons justify the delay that has occurred; and 2) the steps the plaintiff proposes to move the matter forward. The Court in Stoney Band also held that prejudice to the defendant should also be considered as part of the two points considered above. On this aspect, though, the Court notes at paragraph 38 that where a defendant waits for a Notice of Status Review to make a prejudice argument, “that argument will have less weight than if brought on a motion to dismiss for delay”.
[10] In the case at bar, as I have already noted, the appellants filed their motion to dismiss for delay before the Motions Judge only after the Notice of Status Review had been dealt with by the Prothonotary.
[11] Considering the illness of an important witness, the existence of various proceedings, including a counterclaim and a recently amended statement of claim, the fact that other patent infringement actions are pending before the Court against multiple other defendants who are all represented by the same law firm, the fact that all these cases are specially managed by the Prothonotary and are moving along and, finally, the fact that there has been a regrettable lack of cooperation between the parties since the very beginning and that both sides share some blame for the long delay, I am of the view that this claim should be allowed to proceed. The parties should be on notice that the Court is unlikely to tolerate any further delay.
Motion for dismissal
[12] The usual practice, in the Federal Court, is to disallow the taking of further steps in the proceeding during status review. As noted by Pelletier J. (as he then was) in Time Warner Entertainment Co. v. Jane Doe et al. (2000), 186 F.T.R. 303 (F.C.), at 305, “Allowing further steps to be taken during status review effectively pre-empts the status review process”. In Canada v. Spelrem (2001), 211 F.T.R. 274 (F.C.), the Court stated at paragraph 2 that it was under no obligation to deal with a bare motion for default judgment filed in response to a Notice of Status Review.
[13] The filing of a motion for dismissal is a further step in a proceeding. As such it should await the final disposition of the status review. If a party wishes to file such a motion afterwards, it will be submitted to the case management judge or prothonotary (see Rule 385(1)). Harrington J. was therefore correct in concluding that the motion for dismissal under Rule 167 was premature.
[14] That practice is reflected in the matter of Bell v. Bell Estate et al. (2000), 187 F.T.R. 67 (F.C.). Prothonotary Giles had allowed the proceeding to continue on June 21, 1999. As a result of further procrastination by the plaintiff, the defendants filed a motion to dismiss for delay on August 24, 1999. That motion was granted by Prothonotary Lafrenière in the following terms:
[34] The plaintiff has on numerous occasions disregarded deadlines imposed by the Court. There has been a pattern of non-compliance on his part which has resulted in a substantial delay in moving the proceeding forward. The lackadaisical attitude of the plaintiff should, in my view, be strongly censured by the Court.
[15] I also note with interest the comments of McGillis J. in Multibond Inc. v. Duracoat Powder Manufacturing Inc. (1999), 177 F.T.R. 226 (F.C.), at paragraph 15:
Although the Rules provide in rule 167 for a motion to dismiss an action on the ground of undue delay, it is expected that such motions will be only very rarely brought by a party, given the active role now assumed by the Court in monitoring the status of all proceedings.
Disposition
[16] I would dismiss the appeal with costs and refer the matter to the Prothonotary in order to set out an updated and, if he so opines, a more comprehensive schedule.
“Robert Décary”
J.A.
“I agree.
Alice Desjardins J.A.”
“ I agree.
M. Nadon J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-279-06
APPEAL FROM THE ORDER OF THE HONOURABLE MR. JUSTICE SEAN HARRINGTON OF THE FEDERAL COURT, DATED MAY 12, 2006, DOCKET NO. T‑283‑03.
STYLE OF CAUSE: Winnipeg Enterprises Corporation
et al. v. Fieldturf (IP) Inc.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 20, 2007
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: DESJARDINS J.A.
NADON J.A.
APPEARANCES:
|
Mr. Eric Ouimet
|
FOR THE APPELLANTS
|
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Montréal, Quebec
|
FOR THE APPELLANTS
|
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Montréal, Quebec |
FOR THE RESPONDENT
|