Date: 20010308
Docket: T-2529-97
Citation: 2001 FCT 320
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
GARLIC ROSE CAFÉ LTD., c.o.b. as
THE GARLIC ROSE, and MOSES HANNAH
Defendants
[1] This is a Motion by the Defendants for the following Orders:
1) an order that enforcement of the Writ of Execution issued in this proceeding be stayed until further order of the Court pursuant to s. 50.1 of the Federal court Act and Rule 398 of the Federal Court Rules;
2) an order that the time for bringing the Motion be abridged pursuant to Rule 8 of the Federal Court Rules;
3) an Order that the default judgment entered in this action on May 5, 1998 be set aside pursuant to Federal Court Rule 399.
[2] At the hearing of the Motion, after considering the applicant's request to argue the part of the motion to set aside the default judgment at a later date, I indicated that I would not be hearing, that part of the motion on March 5, 2001.
[3] On February 27, 2001 the bailiff attended at the Garlic Rose and delivered a Writ of Seizure and Sale on the defendants. The Bailiff allowed the defendant Hannah to remain in possession of the property as his Bailee until March 7, 2001 thus delaying the selling of all of the goods in the restaurant until March 7, 2001.
[4] The defendants Hannah swore in an affidavit that the has never been served with a statement of claim the Statement of Issue or the judgment and that the first the defendants knew of the action by the Plaintiffs was when the Bailiff attended on February 27, 2001.
[5] There are two affidavits of service filled on the motion. The affidavits state that the statement of claim, the Statement of Issues and judgment were served on the defendants.
[6] The defendants have indicated that they wish to have the Writ of Seizure and Sale stayed until their motion to have the judgment set aside is heard by the Court.
[7] The plaintiff opposes this granting of the stay.
[8] The defendants motion for a stay was made pursuant to section 50.1 of the Federal Court Act[1] (Act) however at the hearing of the motion it was obvious that the motion was being made pursuant to s. 50(1)(b) of the Act which states:
50. (1) The Court may, in its discretion, stay
proceedings in any cause or matter,
...
(b) where for any other reason it is in the interest of
justice that the proceedings be stayed.
[9] I have revised the material filed by the parties and I am of the view that a stay should be granted. The affidavit of Mr. Hannah is clear and not contested by any affidavit of the plaintiff except for the earlier affidavits of service which in my opinion are not overly detailed. There is no indication where the defendants were served unless you take the address listed in the unchecked portion of the affidavit. Although there is no requirement that an address be provided I prefer, for the purposes of this motion only, the more specific affidavit of Mr. Hannah and its contents. On this motion I need only consider whether I should grant the stay and I need not decide whether the judgement should be set aside.
[10] If a stay is not granted then the restaurant assets will be sold and should the defendants prevail in the end the defendants business would be ruined. The defendants have raised a serious allegation in that they state they were never served with the documents. I therefore believe that it is in the interests of justice that no further steps be taken pursuant to the Writ of Seizure and Sale and it is stayed until the motion of the defendants is determined by this Court. The motion shall be brought on by the defendants on the first available motion date and if the motion is not brought the plaintiff may apply to have this stay lifted.
[11] As well the defendants must comply with the conditions outlined in the Notice of Seizure and Man in Possession dated February 27, 2001.
[12] The application for a stay is therefore granted on the above terms.
[13] As indicated at the hearing of the motion I did not deal with the motion to set aside the judgment.
[14] Costs shall be costs in the cause.
(Sgd)"John A. O'Keefe"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2529-97
STYLE OF CAUSE: Society of Composers, Authors and Music Publishers of Canada
v.
Garlic Rose Café Ltd et al
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 5, 2001
REASONS FOR ORDER OF O'KEEFE
DATED: March 8, 2001
HELD IN CHAMBERS BY WAY OF CONFERENCE CALL:
Ms. Anne Godbout For the Plaintiff
Mr. Brian Markus For the Defendants
SOLICITORS OF RECORD:
Society of Composers, Authors
and Music Publishers of Canada
Legal Department
Don Mills, Ontario For the Plaintiff
Patrick G. Guy
Law Corporation
Victoria, British Columbia For the Defendants