Date: 19990326
Docket: T-2221-98
BETWEEN:
ROLLS ROYCE plc, ROLLS-ROYCE MOTOR CARS LIMITED,
and BENTLEY MOTORS LIMITED
Plaintiffs
- and -
IAN D. FITZWILLIAM, ROLLS-ROYCE LIMITED,
ROLLS-ROYCE MOTOR CARS LIMITED,
and BENTLEY MOTORS LIMITED
Defendants
ORDER AND REASONS FOR ORDER
TEITELBAUM, J.
[1] The present application for stay is dismissed with costs in favour of plaintiffs.
[2] On January 28, 1999, Mr. Justice Rouleau issued an Order striking the Statement of Defence and Counterclaim while allowing Mr. Fitzwilliam 60 days from January 28, 1999 to retain counsel. Defendants" counsel would be permitted to file amended pleadings.
[3] The defendants, on or about February 18, 1999 filed a Notice of Appeal from Mr. Justice Rouleau"s decision.
[4] The defendant Fitzwilliam now makes a motion for an Order staying the Order of Mr. Justice Rouleau until after the hearing of the appeal.
[5] Rule 398(1(b) of the Federal Court Rules states:
| 398. (1) Stay of order - On the motion of a person against whom an order has been made, ... (b) where a notice of appeal of the order has been issued, a judge of the division of the Court that is to hear the appeal may order that be stayed. |
398. (1) Sursis d"exécution - Sur requête d"une personne contre laquelle une ordonnance a été rendue: ... b) dans le cas où un avis d"appel a été délivré, seul un juge de la section de la Cour saisie de l"appel peut surseoir à l"ordonnance; |
[6] Therefore, only the Federal Court of Appeal would have the jurisdiction to grant a stay of Mr. Justice Rouleau"s January 28, 1999 Order.
[7] The present applicant, Fitzwilliam, asks, in the alternative, for an Order permitting Fitzwilliam leave for an additional 60 days to retain counsel to represent the corporate defendants.
[8] I am satisfied that I do not have the jurisdiction to grant this request and if I did have the jurisdiction, I would not do so.
[9] First, in that Mr. Justice Rouleau"s Order is now before the Court of Appeal, I believe I do not have the jurisdiction to vary his Order. Assuming I had the jurisdiction to vary his Order, I do not have any evidence before me that would convince me to do so.
[10] Mr. Justice Rouleau gave the defendants 60 days from January 28, 1999 to retain counsel. I have no evidence before me that would show me that the defendants tried to retain counsel within this delay of 60 days.
[11] I see no reason why the defendant Fitzwilliam should be granted an additional 60 days.
[12] The present application is dismissed with costs which I fix at a sum of $250.00.
"Max M. Teitelbaum"
J.F.C.C.