Date: 20000531
Docket: T-1154-95
MONTREAL, QUEBEC, MAY 31, 2000
BEFORE: RICHARD MORNEAU, PROTHONOTARY
Between:
BARRIER SYSTEMS INC.,
Plaintiff,
AND
GILLES RICHER, SIGNALISATION LASM INC.,
9015-2539 QUÉBEC INC.,
LACROIX INDUSTRIES, RICHARD BOURDON,
2842-6351 QUÉBEC INC., OPERATING
AS SIGNALISATION LAURENTIENNE,
MOLE CONSTRUCTION INC., JOHN DOE,
JANE DOE and DOE CORPORATION,
Defendants.
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] The Court has before it a motion by the plaintiff asking that:
| (A) an order be made pursuant to s. 97(c), (d) and (e) of the Federal Court Rules (1998) ("the Rules"), ordering that: |
| (1) the defence of the defendants Robert Bourdon and Gilles Richer be struck out; |
| (2) a judgment by default be rendered against the defendants Bourdon and Richer in accordance with the conclusions contained in the statement of claim; |
| (3) the defendants Bourdon and Richer pay the plaintiff the costs of the abortive examinations for discovery of May 11, 2000, namely the sum of $3,770.67, as established in Appendix A of the affidavit of Sylvie Paulhus filed in support of this motion, without delay following decision on the motion pursuant to Rules 400 and 401; |
| (B) an order be made pursuant to Rules 98, 466(b) and (c) and 467, directing the defendants Bourdon and Richer to appear before a judge to answer charges of contempt of court laid against them in connection with the instant motion, based on evidence submitted in the affidavit of Sylvie Paulhus filed in support of the instant notice of motion; |
| (C) an order be made pursuant to Rules 400 and 401 directing the defendants Bourdon and Richer to pay the plaintiff the costs of the instant motion on a solicitor-client basis, namely the sum of $10,127.67, as set out in Appendix B of the affidavit of Sylvie Paulhus, without delay following decision on the instant motion; |
| (D) any other order be made which this Court shall consider suitable in the circumstances. |
[2] After hearing counsel for the parties and reading their written submissions, the Court essentially accepts the affidavit of Sylvie Paulhus submitted in support of the motion at bar. It appeared from that affidavit that the defendants Bourdon and Richer twice contravened orders made by this Court in the case at bar, namely those of November 10, 1999 and April 17, 2000, as well as the directions to attend served on them by the plaintiff in its repeated efforts to try and enforce compliance with the order of April 17, 2000.
[3] It should be noted that the order of November 10, 1999 was made as the result of a motion by the plaintiff pursuant to Rule 97(a), (b) and (e), inter alia to direct the defendants Bourdon and Richer to attend in order to proceed with their examinations which had been interrupted by repeated interventions by counsel for the defendants and the inadmissible behaviour of the defendant Richer at his examination.
[4] In the same order of November 10, 1999 the Court warned the defendants Bourdon and Richer, after reprimanding them for their conduct and that of their counsel, that if the examinations did not proceed in accordance with the applicable Rules and customs Rule 97 could again be used.
[5] It is important to note that the order of April 17, 2000 laid down a final and definite schedule which the parties were strictly required to observe. By that order, the parties were to complete their examinations for discovery by May 12, 2000 at the latest.
[6] The reasons given by counsel for the defendants Bourdon and Richer in their letter of May 8, 2000 to explain why their clients were unable to comply with the schedule of May 12, 2000, and their absence from the examinations of May 11, 2000, were in the Court's opinion unreasonable and inexcusable. The other explanations given by one of the counsel for the defendants at the hearing carry very little more weight. His absence from Canada from April 13 to May 4, 2000 is hardly relevant since, in past months, counsel for the plaintiff dealt with another attorney from the same firm as that present at the hearing. The defendants, through their counsel, should have strictly observed the schedule of May 12, and this they did not do. This once again indicates their profound disregard for the orders and Rules of this Court.
[7] The plaintiff has already had recourse to Rule 97(a) and (b), but the defendants Bourdon and Richer have not altered their behaviour following the reprimands they were given in the order of November 10, 1999.
[8] Accordingly, the plaintiff's motion should be allowed as follows.
[9] The defendants Bourdon and Richer are required to attend before a judge of this Court at 30 Rue McGill, Montréal at 9:30 a.m. on June 19, 2000 to hear and answer charges of contempt of court laid against them in connection with the instant motion, based on the evidence submitted in the affidavit of Sylvie Paulhus dated May 24, 2000 and filed in support of the said motion.
[10] The defendants Bourdon and Richer are directed to pay the plaintiff the costs of the abortive examinations for discovery of May 11, 2000, namely the sum of $3,770.67, as set out in Appendix A of the affidavit of Sylvie Paulhus filed in support of the motion, without delay following decision on this motion, pursuant to Rules 400 and 401.
[11] In accordance with Rules 400(1) and (3)(i) and 401, the defendants Bourdon and Richer are required to pay the plaintiff as costs on the instant motion the sum of $7,500, without delay following decision on the instant motion. The plaintiff's motion as to costs is dismissed apart from the foregoing.
[12] Additionally, considering that it has an assurance by the defendants through the submissions of their counsel that the case at bar will proceed in accordance with the usual Rules and practices, and in light of the penalties included in this order, the Court does not hereby strike out the defendants' defence, despite the plaintiff's insistence that this should be done. This option, inter alia, allied to an application for judgment by default, will be available to the plaintiff if the following schedule is not strictly observed by the defendants:
| (a) the examinations of the defendants should be completed on or before June 15, 2000, at a date and place contained in the directions to attend which the plaintiff shall serve; |
| (b) a settlement discussion pursuant to Rule 257 shall be held by June 30, 2000 at the latest; |
| (c) the plaintiff shall serve and file an application for a pre-trial conference pursuant to Rule 258 by July 20, 2000 at the latest. |
Richard Morneau
Prothonotary
Certified true translation
Martine Brunet, LL. B.
Federal Court of Canada
Trial Division
Date: 20000531
Docket: T-1154-95
Between:
BARRIER SYSTEMS INC.,
Plaintiff,
AND
GILLES RICHER, SIGNALISATION LASM INC.,
9015-2539 QUÉBEC INC.,
LACROIX INDUSTRIES, RICHARD BOURDON,
2842-6351 QUÉBEC INC., OPERATING AS
SIGNALISATION LAURENTIENNE,
MOLE CONSTRUCTION INC., JOHN DOE,
JANE DOE and DOE CORPORATION,
Defendants.
REASONS FOR ORDER AND ORDER
| FEDERAL COURT OF CANADA |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| COURT FILE No.: T-1154-95 |
| STYLE OF CAUSE: BARRIER SYSTEMS INC., |
| Plaintiff, |
| AND |
| GILLES RICHER, SIGNALISATION LASM INC., |
| 9015-2539 QUÉBEC INC., |
| LACROIX INDUSTRIES, RICHARD BOURDON, 2842-6351 QUÉBEC INC., OPERATING AS SIGNALISATION LAURENTIENNE, MOLE CONSTRUCTION INC., JOHN DOE, JANE DOE and DOE CORPORATION, |
| Defendants. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 29, 2000 |
| REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY |
| DATE OF REASONS FOR ORDER: May 31, 2000 |
| APPEARANCES: |
| François Guay for the plaintiff |
| Olivier Prat for the defendants |
| SOLICITORS OF RECORD: |
| Smart & Biggar for the plaintiff |
| Montréal, Quebec |
| de Grandpré, Chait for the defendants |
| Montréal, Quebec |