Date: 20031204
Docket: T-2036-98
Citation: 2003 FC 1420
BETWEEN:
THE ODESSA PARTNERSHIP, A GENERAL PARTNERSHIP CREATED IN
THE CITY OF CALGARY, IN THE PROVINCE OF ALBERTA, CONSISTING
OF THE FOLLOWING PARTNERS:
DR. W.N. CAMPBELL, DR. L.R. CHASMAR, DR. T.R. CRANSTON,
DR. W.A. FOWLOW, DR. G.E. GAVELIN, MR. R.K. MacDONALD,
THE ODESSA DEVELOPMENT GROUP LTD., A.N. RAUW, ODESSA-DURBIN
DEVELOPMENT LTD., 2809714 ALBERTA LTD., R.K. DIXON
ENGINEERING SERVICES LTD., ETOSHA DEVELOPMENTS LTD.,
CUANZA HOLDINGS LTD., M.B. PARKING LIMITED,
8th & 4th HOLDINGS LTD., 288878 ALBERTA LTD.,
258934 ALBERTA LTD., AND DURBIN INVESTMENTS LTD.
Plaintiffs
- and -
THE DEPARTMENT OF NATIONAL REVENUE,
on behalf of HER MAJESTY THE QUEEN in right of the
Government of Canada
Defendant
UPON a motion in writing pursuant to Rule 369 of the Federal Court Rules, 1998 on behalf of the plaintiffs for:
(a) a preliminary Order allowing the affidavit of Roger MacDonald sworn on October 10, 2003 to be entered as new evidence to be heard on this appeal; and
(b) an appeal setting aside the Order of Madam Prothonotary Aronovitch in the present action dated October 29, 2003 and allowing in its place an extension of the date for filing the affidavit of Roger MacDonald required to be filed under the earlier Order of Madam Prothonotary Aronovitch of June 5, 2003 to a date to be determined by this Honourable Court.
REASONS FOR ORDER AND ORDER
PINARD J.:
[1] As a preliminary matter, the plaintiffs seek an Order permitting the introduction of new evidence which was not before Madam Prothonotary Aronovitch whose decision is the subject of the plaintiffs' appeal. The Order sought is denied as it is well established that new evidence should not be admitted by the Court in the context of an appeal from a prothonotary's decision (see, for example, Apotex Inc. v. Wellcome Foundation Ltd., 2003 FC 1229, [2003] F.C.J. No. 1551 (F.C.) (QL), Canada v. Mid-Atlantic Minerals Inc., 2002 FCT 569, [2002] F.C.J. No. 740 (T.D.) (QL), Camoplast Inc. v. Soucy International Inc., 2001 FCT 169, [2001] F.C.J. No. 330 (T.D.) (QL) and James River Corp. of Virginia v. Hallmark Cards, Inc. (1997), 126 F.T.R. 1).
[2] The plaintiffs appeal the discretionary decision refusing to grant them an extension of time, and permitting the defendant to set down for hearing its motion to strike. This decision was made by Madam Prothonotary Aronovitch in the exercise of her powers as the Case Management Prothonotary assigned to these proceedings.
[3] Upon reading the motion records of the parties, I am not prepared to conduct a de novo review of the merits of the impugned decision and to exercise my own discretion differently for the following reasons:
1. The plaintiffs have failed to demonstrate that the Prothonotary's decision is "clearly wrong", in that it was based upon an incorrect principle of law or misapprehension of the facts, or that the question raised is vital to the "final issue" in the case (see Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, [2003] S.C.J. No. 23 (S.C.C.) (QL)). In her decision, the Prothonotary clearly considered the correct test for whether or not to grant an extension of time, as it appears from the following abstract of her decision:
In particular I find no adequate explanation or justification for further delay, most especially in the overall context of the history of this proceeding. I am not satisfied that the plaintiffs have demonstrated a continuing intention to prosecute this action or comply with the orders of the Court, rather to the contrary. Finally there is not (sic) doubt that he (sic) defendant is prejudiced by the conduct of the plaintiff that approximates an abuse of process.
2. Furthermore, the plaintiffs have manifestly failed to meet the heavy burden of demonstrating that the Prothonotary's interlocutory decision represents the "clearest case of a misuse of judicial discretion" (see Sawridge Band v. Canada, [2002] 2 F.C. 346 at 354 (C.A.)).
[4] Consequently, the appeal is dismissed.
[5] Costs against the plaintiffs.
JUDGE
OTTAWA, ONTARIO
December 4, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2036-98
STYLE OF CAUSE: THE ODESSA PARTNERSHIP et al. v. THE DEPARTMENT OF NATIONAL REVENUE
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: December 4, 2003
APPEARANCES:
Mr. Martin S. Zimmerman FOR THE PLAINTIFFS
Mr. Kerry E.S. Boyd FOR THE DEFENDANT
SOLICITORS OF RECORD:
Martin S. Zimmerman FOR THE PLAINTIFFS
Barrister & Solicitor
Calgary, Alberta
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario