PRACTICE |
Case Management |
Status Review |
Interbox Promotion Corp. v. 9073-0433 Québec Inc.
T-1040-02
2004 FC 144, Harrington J.
29/1/04
13 pp.
Plaintiff promoter of boxing matches in Montréal available on pay-per-view basis--Alleging various establishments illegally showed boxing matches without paying required fee --Suing those refusing to pay for allegedly infringing its copyright--Plaintiff focussing attention on first of four actions, acting diligently in bringing it to trial--However after filing replies to statements of defence in three other actions, did nothing until receiving notices of status review--Plaintiff responded to notices, as did some defendants--As regards defendants who made representations, Prothonotary dismissed actions as against them for delay--Plaintiff appeals those orders--Some of remaining defendants brought applications seeking leave to file late replies to notices of status review, hoping actions will also be dismissed against them--Difficulty herein that plaintiff did not level with defendants, did not propose stay of proceedings and never sought directions from Court--Test for exercise of discretion granted by Federal Court Rules, 1998, r. 382 at conclusion of status of review set out in Baroud v. Canada (1998), 160 F.T.R. 91 (F.C.T.D.), applied--Here, delays counted in months and reasons for delay acceptable, but only just--Defendants claiming prejudice in that delays may make it difficult to keep track of witnesses--In Allen v. McAlpine (Sir Alfred) & Sons, Ltd., [1968] 1 All. E.R. 543, English Court of Appeal noted discretion to dismiss for want of prosecution should not be exercised without giving plaintiff opportunity to remedy default, unless court satisfied either that default has been intentional and contumelious, or that inexcusable delay for which plaintiff or his lawyers have been responsible has been such as to give rise to substantial risk fair trial of issues in litigation will not be possible at earliest date at which, as result of delay, action would come to trial if allowed to continue--Although circumstances of status review initiated by Court somewhat different from motion to dismiss for want of prosecution, such reasoning instructive--These particular actions should not have been dismissed upon first notice of status review--Actions in question continued as specially-managed proceedings--Appeal allowed--Federal Court Rules, 1998, SOR/98-106, r. 382.