Date: 20011205
Docket: T-2680-97
Neutral citation: 2001 FCT 1336
BETWEEN:
MICROFIBRES INC.
Plaintiff
and
ANNABEL CANADA INC. and
ALFONS DERUMEAUX and
ANNABEL N.V.
Defendants
INTRODUCTION
[1] These reasons arise out of a hearing on the 29th of November, 2001 of a motion on behalf of the defendant Annabel N.V. for an order under Rule 51 of the Federal Court Rules, 1998,[1] allowing an appeal from an order of Prothonotary Lafrenière made the 8th of November, 2001, in which the learned prothonotary dismissed Annabel N.V.'s motion for separate determination of issues as follows:
first, the trial of the issues of the existence of copyright, if any, in each of the plaintiff's alleged seven (7) designs and the liability, if any, of the defendants or any of them for alleged infringement or authorizations of any one (1) or more of plaintiff's alleged designs;
second, if both copyright and liability are found to exist with respect to one or more of the plaintiff's alleged designs, the trial of the issues of damages and profits, if any, for the corresponding instances of infringement or authorizations, if any, proven at trial.
Trial of this action is scheduled to begin on the 4th of February, 2002 and to continue for thirteen (13) days.
[2] Counsel for Annabel N.V. urges that the trial should be split: first, because the title and liability issues for trial are numerous and complex and will require substantial courtroom time of themselves; second, because the issue of the plaintiff's damages has not to date been adequately defined by the pleadings and discoveries; third, because the issue of profits is once again complex and inadequate time remains before the trial to prepare on that issue; and finally, because, in any event, it would be wasteful of resources, both for the parties and the Court, to try issues relating to reliefs before title and liability are established.
[3] Counsel for Annabel N.V. urges that this appeal should be allowed because the decision of the learned prothonotary is "clearly wrong" within the meaning ascribed to that expression in Canada v. Aqua-Gem Investments Ltd.[2]
[4] Counsel for Annabel Canada Inc. and Alfons Derumeaux supports the position of counsel for Annabel N.V.
[5] By contrast, counsel for the plaintiff urges that this appeal should be rejected.
STANDARD OF REVIEW
[6] In Canada v. Aqua-Gem Investments Ltd., supra, Mr. Justice MacGuigan, for the majority of the panel of the Federal Court of Appeal, wrote at pages 462-3:
I also agree with the Chief Justice [who dissented in part] in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam ..., and Lacourcière J.A. in Stoicevski v. Casement ... discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo. [citations omitted]
On the facts of this matter, it was not urged that the learned prothonotary erred in law or that the issue before him raised questions vital to the final issue of the case. Rather, it was urged that he exercised his discretion either on the basis of a wrong principle or upon a misapprehension of the facts, or both.
[7] Very recently, in L'Hirondelle et al v. Her Majesty the Queen[3], Mr. Justice Rothstein for the Federal Court of Appeal, wrote at paragraph [11]:
We would take this opportunity to state the position of this Court on appeals from orders of case management judges. Case management judges must be given latitude to manage cases. This Court will interfere only in the clearest case of a misuse of judicial discretion. This approach was well stated by the Alberta Court of Appeal in Korte v. Deloitte, Haskins and Sells ... and is applicable in these appeals. We adopt these words as our own.
[...] This is a very complicated lawsuit. It is the subject of case management and has been since 1993. The orders made here are discretionary. We have said before, and we repeat, that case management judges in those complex matters must be given some "elbow room" to resolve endless interlocutory matters and to move these cases on to trial. In some cases, the case management judge will have to be innovative to avoid having the case bog down in a morass of technical matters. Only in the clearest cases of misuse of judicial discretion will we interfere. In this case, the carefully crafted orders made by the case management judge display sound knowledge of the rules and the related case law. In particular, the order contains a provision that the parties are free to return to the case management judge for relief from the imposition of any intolerable burden imposed by the order. No clear error has been shown and we decline to interfere. While there may be some inconvenience to some of the parties, this does not translate into reversible error. We are not here to fine tune orders made in interlocutory proceedings, particularly in a case such as this one. [citation omitted, emphasis added]
[8] In further reasons issued contemporaneously with the reasons from which the foregoing quote is extracted[4], Mr. Justice Rothstein, once again for the Court, and by reference to the reasons from which the foregoing quotation is drawn, wrote at paragraph [4]:
Questions of joinder and severance are quintessential subject matters of case management. Such questions are to be decided by the exercise of discretion by a case management judge familiar with the proceedings. On appeal, a court will interfere with such decisions only where there is demonstrated a clear misuse of judicial discretion. (See L'Hirondelle et al. v. Her Majesty...). [emphasis added, citation omitted]
[9] It is clear that Mr. Justice Rothstein's comments were made in the context of case management by a case management judge whose decision was only appealable directly to the Court of Appeal. The issue before me, and counsel were made aware that I considered this to be an issue before me before the opening of the hearing on this motion, was whether Mr. Justice Rothstein's reasoning should be applied by analogy to discretionary decisions of case management prothonotaries made in the course of complex matters, and I consider this action to be a complex matter.
[10] Not surprisingly, counsel for the plaintiff urged that Mr. Justice Rothstein's reasoning should apply to discretionary decisions of case management prothonotaries in the course of case management of complex matters. Equally not surprising, counsel for the defendants urged against adoption of the foregoing reasoning by analogy.
[11] I conclude that Mr. Justice Rothstein's comments should apply by analogy to discretionary decisions of prothonotaries made in the course of case management in complex matters such as this. Case management prothonotaries must be given latitude to manage cases in the same manner in which case management judges are entitled to such latitude. In the words of the Alberta Court of Appeal quoted by Mr. Justice Rothstein:
...case management judges [and in this in the context of this Court I include case management prothonotaries] in ... complex matters must be given some "elbow room" to resolve endless interlocutory matters and to move these cases on to trial.
Case Management prothonotaries, like case management judges, are familiar with the proceedings that they are managing to a degree that a trial judge, sitting on appeal from a prothonotary's discretionary decision in such a context, usually cannot be.
[12] In short then, I regard the wisdom reflected in Mr. Justice Rothstein's comments on behalf of the Court of Appeal, by analogy, to represent a gloss on the standard of review of discretionary orders of prothonotaries reflected in the Aqua-Gem decision, supra.
ANALYSIS
[13] The decision of Prothonotary Lafrenière that is here under appeal was made under Rule 107 of the Federal Court Rules, 1998. That rule reads as follows:
107. (1) The Court may, at any time, order the trial of an issue or that issues in a proceeding be determined separately.
(2) In an order under subsection (1), the Court may give directions regarding the procedures to be followed, including those applicable to examinations for discovery and the discovery of documents.
107. (1) La Cour peut, à tout moment, ordonner l'instruction d'une question soulevée ou ordonner que les questions en litige dans une instance soient jugées séparément.
(2) La Cour peut assortir l'ordonnance visée au paragraphe (1) de directives concernant les procédures à suivre, notamment pour la tenue d'un interrogatoire préalable et la communication de documents.
[14] Clearly the issue before the learned prothonotary left to him a degree of discretion. His conclusion in the exercise of that discretion in no sense affected a question vital to the final issue of the case. To the contrary, it involved a question remarkably similar to questions of joinder and severance that Mr. Justice Rothstein notes in the quotations above are "...quintessential subject matters of case management." Despite the urgings of counsel for Annabel N.V., I cannot conclude that the learned prothonotary's decision was based upon a wrong principle or upon a misapprehension of the facts amounting to a demonstrably clear misuse of judicial discretion.
A BRIEF LOOK FORWARD
[15] As noted earlier in these reasons, trial dates in this matter are imminent. Counsel for Annabel N.V. put before me evidence that was not before Prothonotary Lafrenière. This might demonstrate that counsel's concerns about readiness for trial on all issues when this matter comes on for trial might be demonstrably better founded now than when the issue of splitting the trial was before Prothonotary Lafrenière.
[16] The issue of splitting the trial in this matter that was the subject of the learned prothonotary's order under Rule 107 that is here under appeal had come up earlier in this matter. In fact, the motion considered by Prothonotary Lafrenière was the second such motion in the course of this matter. Whether or not the issue of splitting the trial was res judicata thus arose earlier before Mr. Justice Pelletier. He wrote[5] at paragraphs [14] to [16]:
The Prothonotary is the designated case manager for this file and has been hearing various motions in that capacity. In making the order granting leave, the Prothonotary was, once again, acting in the capacity of case manager. Given the mandate of the case manager to give such directions as may lead to the most just and expeditious and least expensive resolution of the dispute between the parties, one can conclude that in those circumstances, the case manager is acting outside the adversarial system. This is so because he is entitled to act on his own motion. In my view, Rule 385 gave him the authority to grant leave to bring a motion which would otherwise be caught by the doctrine of res judicata and, in so doing, to set aside the application of res judicata as it would apply to that motion.
However, the policy behind the doctrine of res judicata remains sound: there should be a finality to decisions so that parties are not constantly relitigating the same question. The power of a case manager to revisit a question which has already been decided once is not to be exercised capriciously. In deciding whether the case manager has acted capriciously, the test to be met is not whether the circumstances have changed sufficiently that res judicata does not apply. The test is whether there exist facts from which the case manager could conclude that the process of bringing the case to a fair trial could be assisted by revisiting a particular question. The case manager's views on this question would, in my view, be entitled to considerable deference.
Consequently, the motion for an order under Rule 107 is not barred by the failure of the previous motion seeking the same relief.
[17] I am satisfied that the foregoing reasoning continues to apply with regard to the possibility of a further motion under Rule 107. Further, I would extend the foregoing, given the proximity of trial dates in this matter, to encompass a discretion to waive the bar normally arising by the failure of previous motions under Rule 107 to seek the same relief, to the Trial Judge, who ever he or she may be, as well as to the case management prothonotary. I emphasize that waiving the bar, as noted by Mr. Justice Pelletier, is a matter of discretion, albeit that the discretion of the case management prothonotary and, as well, the designated Trial Judge, would, in my opinion, be entitled to considerable deference.
CONCLUSION
[18] At the close of the hearing before me, I advised counsel that the appeal by way of motion that was before me would be dismissed with costs in the cause. An Order to that effect issued on the date of the hearing before me, that is to say, the 29th of November, 2001.
_______________________________
J. F. C.C.
Ottawa, Ontario
December 5, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2680-97
STYLE OF CAUSE: MICROFIBRES INC. v. ANNABEL CANADA INC.
ET AL.
PLACE OF HEARING: OTTAWA
DATE OF HEARING: NOVEMBER 29, 2001
REASONS FOR ORDER : GIBSON, J.
DATED: DECEMBER 5, 2001
APPEARANCES:
KEVIN SARTORIO FOR THE PLAINTIFF
KEN CLARK
DANIEL URBAS FOR THE DEFENDANT ANNABEL N.V.
JENNIFER ROSS-CARRIÈRE FOR THE DEFENDANTS ANNABEL CANADA INC. and ALFONS DERUMEAUX
SOLICITORS OF RECORD:
GOWLING LAFLEUR HENDERSON LLP FOR THE PLAINTIFF
TORONTO
WOODS & PARTNERS FOR THE DEFENDANT
MONTRÉAL ANNABEL N.V.
OSLER, HOSKIN & HARCOURT LLP FOR THE DEFENDANTS
MONTRÉAL ANNABEL CANADA INC. and
ALFONS DERUMEAUX
[1] SOR/98 - 106.
[2] [1993] 2 F.C. 425 (F.C.A.).
[3] [2001] F.C.A. 338, November 7, 2001.
[4] [2001] F.C.A. 339, November 7, 2001.
[5] [2001] F.C.T. 1032, September 20, 2001.