Date: 20000216
Docket: T-686-99
BETWEEN:
WIC PREMIUM TELEVISION LTD.
Plaintiff
- and -
ROY LEVIN a.k.a. ROY LEVINE, JOHN DOE, JANE DOE and ANY OTHER
PERSON OR PERSONS FOUND ON THE PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES AT 1830 DUBLIN AVENUE, WINNIPEG, MANITOBA WHO OPERATE OR WORK FOR BUSINESSES CARRYING ON BUSINESS UNDER THE NAME AND STYLE OF "STARLINK", "STARLINK INC.", "STARLINK CANADA", "STARLINK MANITOBA", OR ONE OR MORE OF THEM,
ROY LEVIN a.k.a. STAR*LINK CANADA (1998), STARLINK INC. 3563716 MANITOBA LTD. a.k.a. STAR*LINK MANITOBA and 3942121 MANITOBA LTD. a.k.a. STAR*LINK CANADA SATELLITE SERVICE
Defendants
REASONS FOR ORDER
PELLETIER J.
[1] There are two motions before the Court, one brought by the Defendant and another brought by the Plaintiff. Both seek various head of relief against the backdrop of a
February 28, 2000 hearing date.
[2] The Plaintiff is the holder of certain licenses issued by the Canadian Radio Telecommunications Commission which allow it to distribute certain program materials to consumers using satellite technology. The Defendant operates a business which allows consumers to receive certain programming materials from distributors who are licensed in the United States but not in Canada to distribute certain program materials, also using satellite technology. The Plaintiff seeks a permanent injunction restraining the Defendant from carrying on its business on the ground that it unlawfully injures the Plaintiff"s business interests. The Defendant disputes the Plaintiff"s right to the relief sought.
[3] The Court file is littered with motions and cross motions, as well as orders made at case-management conferences. A number of motions have been deferred to a three day hearing which is to commence February 28, 2000. The motions before the Court deal with various matters related to the February 28 hearing, including a request for an adjournment of that hearing by the Defendant.
[4] This case is under case management but a new case management judge had to be appointed because the former case management judge was appointed to the Federal Court of Appeal. Madame Justice Heneghan has been appointed the new case management judge. These motions were made returnable before her in Winnipeg on Tuesday, February 15, 2000. Justice Heneghan was not available in Winnipeg on that date, and could not deal with the matter from the location at which she found herself on that date. With her concurrence, and having regard to the looming hearing date, I heard the motions in Winnipeg by telephone conference call as counsel for the Plaintiff could not leave Toronto due to inclement weather.
[4] As indicated there have been a number of case-management conferences at which various matters have been deferred to be heard by the case-management judge. As of the date of this hearing, these included a motion for an interim injunction, a motion for summary judgment in which the relief sought includes a permanent injunction, a motion to set damages in default of defence to the Defendant"s counter claim, and various other motions which the parties could only describe as consisting of miscellaneous procedural matters.
[5] The pre-hearing procedures are not completed in that undertakings have not been complied with to the opposing party"s satisfaction, cross examinations have not been completed, transcripts have not been obtained, a Notice of Constitutional Question has not been proceeded with and so on. There are mutual recriminations as to why this is so but it appears from the record that the parties have had difficulty agreeing on scheduling and there has been a tendency to put things off to a later time which has meant that time has run out on Mr. Levin. On my reading of the record, both parties bear some responsibility for the current state of this file. The pressing issue is the use to be made of the three days reserved for the hearing of various motions with respect to this matter.
[6] The Plaintiff filed a motion for summary judgement including a permanent injunction on August 6, 1999. By order dated September 10, 1999, Madame Justice Sharlow set the date for the hearing of the summary judgment application at November 23, 24 and 25. At that time, Mr. Levin objected to the date on the ground that he could not be ready to proceed by then. Madame Justice Sharlow noted that:
| "On the other hand, Mr.Levin has made no attempt to seek relief from the restraining order [barring his access to his home where certain documents were stored] for the purpose of obtaining his documents. He has made no effort to examine the documents that are in the hands of Ms. Grande in Winnipeg. He did not comply with previous orders setting deadlines for various steps in this matter, his excuse being that he did not think he had to because he had applied for an extension and his application was not dealt with prior to the deadline." |
[7] By order dated October 5, 1999, the matters scheduled for hearing on November 23, 24, and 25 were adjourned to February 28, 29 and March 1, 2000. On November 16, 1999, the Plaintiff filed a motion seeking an interlocutory injunction and other relief. That motion which was originally scheduled to be heard on November 22, 1999, was adjourned to December 13, 1999. By order dated December 9, 1999 it was adjourned again to
February 28. The Plaintiff"s request to make the February 28, 2000 date peremptory was refused. Madame Justice Sharlow expressed the view that there was no reason why the normal principles applicable to adjournments should not apply to this case.
[8] Against that background, I am not prepared to grant an adjournment of all matters scheduled to be heard on February 28 on the ground that this matter must be moved forward in the interests of all the parties. Accordingly I order that the Plaintiff"s motion for an interlocutory injunction will be heard on February 28 as previously ordered, but that the Plaintiff"s motion for summary judgment will not be heard at that time and will be referred to the Case Management Judge to be dealt with as she directs. My reasons for proceeding with the interlocutory injunction application first, even though it was filed last, is that, it would not be fair to Mr. Levin to expose him to the risk of a final determination of his rights on the current status of the pre-hearing procedures.
[9] On the other hand, repeated adjournments of these matters on the ground of lack of preparation cannot continue. Counsel for the Plaintiff says it is prepared to proceed notwithstanding the lack of responses to undertakings. Mr. Levin repeats that he is not ready to proceed but he must accept some responsibility for that state of affairs. This date was fixed some time ago. It was the responsibility of the parties to arrange their affairs so as to be ready to proceed on the date set. Two of the three days set aside for the hearings will be reserved for the interlocutory injunction application. The parties are to provide me with their suggestions for the matters to be dealt with on the third day by Monday, February 21, 2000 and I will determine which further matters will be dealt with then. All other matters are referred to the Case Management Judge for disposition as she advises.
[10] With respect to the various requests contained in the motions, a separate order will issue in respect of each motion.
"J.D. Denis Pelletier"
Judge
Winnipeg, Manitoba
February 16, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-686-99
| STYLE OF CAUSE: WIC PREMIUM v. LEVIN et al |
PLACE OF HEARING: Winnipeg, Manitoba
| DATE OF HEARING: February 15, 2000 |
| REASONS FOR ORDER BY: The Honourable Mr. Justice Pelletier |
DATED: February 16, 2000
APPEARANCES
T. Anderson for the Plaintiff
D. Giles for the Defendant by Counterclaim
Roy Levin on his own behalf
SOLICITORS OF RECORD
T. Anderson
40 Coldwater St. E.
PO Box 520
Orillia, ON L3V 6K4 for the Plaintiff
D. Giles
1700 - 360 Main St.
Winnipeg, MB R3C 3Z3 for the Defendant by Counterclaim
Roy Levin
c/o Federal Court of Canada
400 - 363 Broadway
Winnipeg, MB R3C 3N9 on his own behalf