Date: 19990507
Docket: T-2363-96
BETWEEN:
BIO-SUPPORT INDUSTRIES LTD., OBUS FORME LTD.,
GLOBAL UPHOLSTERY CO. LIMITED, and
GLOBAL UPHOLSTERY COMPANY
Plaintiffs
- and -
ALLSEATING CORPORATION
Defendant
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] The file number in this proceeding indicates that many times 360 days have elapsed since the statement of claim was filed, and the file has not yet progressed to the point where a pre-trial conference could be requisitioned.
[2] The plaintiff alleges that most of the delay was before the new Rules. Certainly, since April 1998 no inordinate delay can be laid exclusively at the door of the plaintiff. The defendant has sought to penalize the plaintiff for the delay, but had there been any great prejudice to the defendant it could have moved for dismissal for want or prosecution, which it did not do.
[3] Since April 1998 a great deal of time has been spent on motions which would be wasted should the action be dismissed.
[4] The most recent addition to the file was an amended statement of defence and counter-claim filed while a status review was outstanding.
[5] When reviews of older cases have been worked off it is possible that such filings will be impractical, but at the moment they preclude yet more delay. However, they must be heard and disposed of subject to the status review which will take into account the status of the file when the notice of status review was sent.
[6] Counsel has drawn to my attention the fact that in this matter there is a counter-claim in addition to the main action. A "Notice of Status Review" has been sent to all the parties in the style of cause which would include all the parties to the counter-claim. Only the plaintiff has been required to show cause. The question arises should the plaintiff by counter-claim respond to the notice and attempt to justify the continuation of the counter-claim separate from the main action if necessary?
[7] It could be argued that the plaintiff by counter-claim has not been ordered to show cause and therefore does not have to react. If it were decided to strike the action, and if the counter-claim were intimately associated with the action, it is conceivable the counter-claim would be ignored. One hopes it would not be dismissed without a further show cause being sent to the plaintiff by counter-claim
[8] In the event a further show cause had to be issued, the parties, their counsel, the Registry and the judiciary would be all activated a second time. It would be more efficient if the plaintiffs by counter-claim took the opportunity of responding to the notice of status review which has been sent to them by seeking to justify continuing separate life for their counter-claims if necessary. Such a response should be labelled to show that it is "[also] in support of continuation of the counter-claim" so that the Registry will allow time for a response by the defendants to counter-claim.
[9] A response by the defendant, plaintiff by counter-claim, will also enable the order continuing the proceedings to specifically permit continuance of the counter-claim should the action be continued and they obviate the need for further notices of status review.
ORDER
I am satisfied that this proceeding and counter-claim should continue, and order that they continue as a specially managed proceeding.
It is further ordered that any reply and defence to counter-claim be filed by May 28, 1999; any reply to the defence to counter-claim filed by June 7, 1999; and any necessary further affidavits of documents be filed by June 21, 1999; by that date any further motions for re-attendance should have been set down; any further discovery necessitated by the new pleadings is to be completed before September 10, 1999; and a pre-trial conference shall be requisitioned by December 1, 1999.
Should either party wish to vary this schedule prior to the appointment of a case management judge, the Court may be moved and the Registry will file such a motion.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
May 7, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2363-96
| STYLE OF CAUSE: BIO-SUPPORT INDUSTRIES LTD., OBUS FORME LTD., |
GLOBAL UPHOLSTERY CO. LIMITED, and
GLOBAL UPHOLSTERY COMPANY
- and -
| ALLSEATING CORPORATION |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: FRIDAY, MAY 7, 1999
SOLICITORS OF RECORD: Bereskin & Parr
Barristers & Solicitors
Box 401, 40 King Street West
Toronto, Ontario
M5H 3Y2
For the Plaintiffs
Keyser Mason Ball
Barristers & Solicitors
Suite 701
201 City Centre Drive
Mississauga, Ontario
L5B 2T4
For the Defendant
FEDERAL COURT OF CANADA
Date: 19990507
Docket: T-2363-96
Between:
| BIO-SUPPORT INDUSTRIES LTD., OBUS FORME LTD., |
GLOBAL UPHOLSTERY CO.
LIMITED, and
GLOBAL UPHOLSTERY COMPANY
Plaintiffs
- and -
| ALLSEATING CORPORATION |
Defendant
REASONS FOR ORDER
| AND ORDER |