Date: 20010920
Court File No.: T-2680-97
Neutral Citation: 2001 FCT 1037
Ottawa, Ontario, this 20th day of September, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MICROFIBRES, INC.
Plaintiff
- and -
ANNABEL CANADA INC.
ALFONS DERUMEAUX
and ANNABEL NV
Defendants
REASONS FOR ORDER AND ORDER
Nature of Proceedings
[1] By motion in the nature of a cross-appeal, the plaintiff seeks an order allowing an appeal in part of Prothonotary Lafrenière's Order dated July 13, 2001.
Facts
[2] This motion arises from an action for copyright infringement in respect to the plaintiff's copyright artistic fabric designs. The plaintiff alleges that the defendants made and sold unauthorized reproductions of their copyright designs in full knowledge of these copyrights. The statement of claim was filed on December 11, 1997.
[3] A first motion to bifurcate the proceeding brought by the defendants Annabel Canada Inc. and Alfons Derumeaux was filed on January 11, 2000, and dismissed by consent order of Prothonotary Lafrenière on January 18, 2000.
[4] On October 12, 2000, the Court allowed the plaintiff to add Annabel N.V. as one of the defendants.
[5] On December 11, 2000, the defendants, including Annabel N.V., brought a motion to bifurcate the proceeding. This motion was dismissed by Prothonotary Lafrenière on December 15, 2001. Prothonotary Lafrenière gave no reasons for dismissing this motion.
[6] On discovery, question 023 was put to the defendant Annabel N.V.: "Produce all of Annabel N.V.'s sales invoices for sales of the fabric at issue, regardless of whether those sales were made inside or outside of Canada." The defendant Annabel N.V. refused on grounds of lack of relevance and jurisdiction. On July 13, 2001, on motion, Prothonotary Lafrenière made the following order with respect to question 023:
This question is relevant and shall be ordered answered, unless within 30 days of the signing of this Order the Defendant Annabel N.V. files a Notice of Motion to bifurcate this proceeding in accordance with Rule 107, to separate the issues of liability from issues of damages and profits, in which case this question shall not be ordered answered pending the final resolution of that motion.
[7] On July 23, 2001, the defendants served the plaintiff with a third motion to bifurcate the proceeding respecting the 30 day deadline imposed by the July 13, 2001 Order of Prothonotary Lafrenière.
[8] The plaintiff brings this motion under Rule 51 of the Federal Court Rules, 1998, SOR/98-106, seeking the following relief:
(a) allowing an appeal of the above cited part of Prothonotary Lafrenière's order of July 13, 2001;
(b) substituting therefore the following order: "This question is relevant and is ordered answered"; and
(c) granting leave to abridge the time requirements for the filing of this appeal and dispensing with the requirements of filing a separate motion record in support of this motion.
Issues
[9] 1. Should leave be granted for an extension of time for the filing of this appeal?
2. Was Prothonotary Lafrenière's decision based upon a wrong principle of law or upon a misapprehension of facts on a question vital to the final issue of the case?
Standard of Review
[10] The standard of review of discretionary orders of Prothonotaries in the Federal Court is well established. Discretionary orders of a Prothonotary cannot be disturbed on appeal unless they are clearly wrong, in the sense that the exercise of discretion by the Prothonotary was based upon a wrong principal of law or upon a misapprehension of the facts on a question vital to the final issue of the case. [See Canada v. Aqua-Gem Investments Ltd. (C.A.), [1993] 2 F.C.. 425 (F.C.A.), (1993), 149 N.R. 273.]
Analysis
[11] The plaintiff filed its August 31, 2001 notice of motion to appeal and in so doing, waited:
(a) Thirty-nine (39) days after Annabel N.V.'s July 23, 2001 notice of appeal;
(b) Forty-nine (49) days after the date of July 13, 2001 order; and
(c) Seventy-nine (79) days after the June 13, 2001 hearing.
[12] Rule 51 of the Federal Court Rules, 1998 provides that any notice of motion to appeal "shall" be served within ten (10) days after the day on which the order under appeal was made. Even if one were to accept that a "cross-appeal" can be filed to an appeal of an order of a Prothonotary pursuant to Rule 341, such a cross-appeal must be filed within ten (10) days, and not thirty-nine (39) days from the date of the filing of the appeal.
[13] The plaintiff's motion is clearly time barred, and requires leave from the Court for an order to abridge the time requirement to allow this appeal to be filed.
[14] Rule 55 of the Federal Court Rules, 1998 specifies that the moving party must invoke "special circumstances" justifying the request for an extension of delays.
[15] The Federal Court of Appeal in Canada v. Hennelly [1999], online: QL, F.C.J. No. 846, enunciated the criteria to be met by a party seeking an extension of time. At paragraph 3 of the decision, McDonald J. stated: "The proper test is whether the applicant has demonstrated:
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists."
[16] The defendants argue that neither the affidavit evidence nor the written representations filed by the plaintiffs disclose any reason justifying its inaction or any impossibility to respect the imperative language of Rule 51. A review of the affidavit of Kenneth K. Clark and the written submissions of the plaintiff advance no explanation for the delay, nor is there any evidence that the applicant had a bona fide intention to appeal while the right to appeal existed.
[17] At the hearing, counsel for the plaintiff argued that the defendants would suffer no prejudice if leave were granted; that a number of motions were brought by the defendants for hearing on September 10, 2001, all relating to the subject matter of this motion. It may well be that the defendants would suffer no prejudice should leave be granted, the plaintiff must nevertheless show that it had a bona fide intention to appeal and that its failure to do so is attributable to special circumstances. This, in my view, the plaintiff has failed to do.
[18] The jurisprudence of this court has consistently held that the applicant must show a "bona fide intention to appeal while the right to appeal existed and that the failure to appeal was by reason of some very special circumstances which serves to excuse or justify such failure." [See LeBel v. Canada, [1987] F.C.J. No. 607 at page 3 and Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc., [1997] 75 C.P.R. (3d) 326.]
[19] For the above reasons I am unable to grant leave to abridge time for the plaintiff to file an appeal of part of the decision of Prothonotary Lafrenière's decision dated July 13, 2001. This motion will therefore be dismissed.
[20] It will not be necessary for me to deal with the second issue outlined above since my finding on the first issue will suffice to dispose of this motion.
ORDER
THIS COURT ORDERS that:
1. The motion is dismissed with costs in the cause.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2680-97
STYLE OF CAUSE: Microfibres Inc. v. Annabel Canada Inc. et al.
PLACE OF HEARING: Montréal, QC
DATE OF HEARING: September 17, 2001
REASONS FOR ORDER AND ORDER OF The Honourable Mr. Justice Blanchard
DATED: September 20, 2001
APPEARANCES:
Mr. Kevin Sartorio FOR PLAINTIFF
Ms. Silvana Conte FOR DEFENDANTS
Annabel Canada Inc. and Alfons Derumeaux
Mr. Daniel Urbas FOR DEFENDANT
Annabel N.V.
SOLICITORS OF RECORD:
Gowlings Lafleur Henderson FOR PLAINTIFF
Toronto, ON
Davies Ward Phillips & Vineberg LLP FOR DEFENDANTS
Montréal, QC Annabel Canada Inc. and Alfons Derumeaux
Woods & Partners FOR DEFENDANT
Montréal, QC Annabel N.V.