Date: 19990426
Docket: T-1277-97
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS
AND MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
MALCOLM ENTERPRISES LTD., c.o.b.
as VANCOUVER ISLAND FITNESS
and MALCOLM D. NORTHRUP
Defendants
REASONS FOR ORDER
LAFRENIÈRE, P.:
[1] On April 26, 1999, the plaintiff brought a motion for judgment against the defendant, Malcolm Enterprises Ltd, in default of filing a Statement of Defence. The plaintiff also sought an order striking the Statement of Defence of "Mac Northrup" and judgment against Malcolm D. Northrup in default of filing a Statement of Defence. In the alternative, the plaintiff requested enforcement of a settlement reached between the parties. I declined to hear the matter and adjourned the motion sine die pending disposition of the status review currently being conducted by the Court. The following are the reasons for order, as requested by counsel for the plaintiff.
[2] In June1997, the plaintiff commenced this action alleging infringement of its copyrights by the defendants contrary to section 3 and 27 of the Copyright Act. The Statement of Claim sought, inter alia, a declaration that the defendants infringed the plaintiff"s copyright, an injunction to prevent further infringement, damages and costs. The defendants were served with the Statement of Claim on June 23, 1997.
[3] On July 10, 1997, a Statement of Defence was filed by a "Mac Northrup" who appears to be a non-lawyer. It is not clear from reviewing the Statement of Defence on whose behalf the pleadings were being filed. Leave was not requested by the corporate defendant to be represented by a person other than a solicitor.
[4] The plaintiff brought a motion returnable on November 24, 1997 seeking default judgment against the corporate defendant and an order striking the Statement of Defence of "Mac Northrup". The grounds for the motion were that the corporate defendant had failed or refused to file a Statement of Defence and that the Statement of Defence of "Mac Northrup" was deficient. The motion, which was heard by the Associate Senior Prothonotary, was adjourned sine die at the request of the plaintiff, presumably to facilitate settlement.
[5] Based on the affidavit material filed in support of the present motion, in December 1997 or January 1998, the parties settled the action on terms that required the defendants to pay the plaintiff legal costs of $500.00, to provide regular reports to the plaintiff and to pay applicable licence fees for the years 1996 to present. Correspondence exchanged between the parties from May to September 1998 suggests that a disagreement arose regarding the accuracy of the reports provided by the defendants. The last letter from the plaintiff dated September 30, 1998 ends as follows: "If we do not receive a satisfactory reply to this letter, we will move to enforce the terms of settlement." There is no indication that the defendants subsequently replied.
[6] On February 5, 1999, the plaintiff filed the present motion which was initially scheduled to be heard on February 15, 1999. Prior to the hearing date, the motion was once again adjourned sine die by consent of all the parties.
[7] On April 1, 1999, a Notice of Status Review was issued pursuant to subparagraph 380(1)(a)(ii) of the Federal Court Rules, 1998. The Court automatically fixes a time and place for a status review where a proceeding has not met certain time benchmarks. In this case, no party had filed a requisition for a pre-trial conference within 360 days since the issuance of the Statement of Claim. As a result, the plaintiff was required to show cause by written submissions, to be served and filed no later than May 3, 1999, why its action should not be dismissed for delay.
[8] On April 14, 1999, the plaintiff filed a Notice of Return of Motion seeking to have its motion, which had been filed on February 5, 1999, heard on April 26, 1999. Counsel for the plaintiff submitted that the motion should be heard despite the outstanding status review. He contended that there was nothing in the Rules to suggest that the status review operated as a stay of proceedings. He further argued that status reviews conducted pursuant to Rules 380 to 382 were not intended to delay final resolution of actions. When I declined to hear the motion, he urged that reasons for order be issued to provide direction and assist members of the Bar.
[9] A status review is convened by the Court when parties fail to reach specific steps within a certain time. The powers of the Court on status review include requiring the plaintiff to show cause why the proceeding should not be dismissed for delay and dismissing for delay if not satisfied. The notice of status review in this case, upon issuance under Rule 381, shifted the onus onto the plaintiff to satisfactorily explain the delay in prosecuting its action. In other words, the plaintiff must now account for its failure to file a requisition for a pre-trial conference under Rule 258 within 360 days [rule 380(1)(a)(ii)]. Plaintiffs who ignore the mandatory time frames in the Rules risk having their action dismissed for delay.
[10] It is therefore, in my view, premature to deal with the plaintiff"s motion for default judgment before the status review hearing is completed. To allow the plaintiff to proceed on its motion would circumvent the status review. It could also result in irreconcilable decisions from this Court in simultaneous proceedings, such as dismissal of the plaintiff"s action on status review and default judgment being granted against the defendant on plaintiff"s motion. Such a result would be unacceptable.
[11] Consequently, the plaintiff"s motion is adjourned pending a decision on status review. The plaintiff can then bring its motion in the event the action is not dismissed.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
April 26, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1277-97
| STYLE OF CAUSE: SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA |
| - and - |
| MALCOLM ENTERPRISES LTD., c.o.b. as VANCOUVER ISLAND FITNESS and MALCOLM D. NORTHRUP |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
| REASONS FOR ORDER BY: LAFRENIÈRE, P. |
DATED: MONDAY, APRIL 26, 1999
PLACE OF HEARING: TORONTO, ONTARIO
APPEARANCES: Mr. Mark F. Walker
For the Plaintiff
No appearance
For the Defendants
SOLICITORS OF RECORD:
Society of Composers, Authors and
Music Publishers of Canada
41 Valleybrook Drive
Don Mills, Ontario
M3B 2S6
For the Plaintiff
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Defendants
FEDERAL COURT OF CANADA
Date: 19990426
Docket: T-1277-97
Between:
| SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA |
Plaintiff
| - and - |
| MALCOLM ENTERPRISES LTD., c.o.b. as VANCOUVER ISLAND FITNESS and MALCOLM D. NORTHRUP |
Defendants
REASONS FOR ORDER