Date: 20031028
Docket: T-824-03
Citation: 2003 FC 1257
Montreal, Quebec, October 28, 2003
Present: RICHARD MORNEAU, ESQ., PROTHONOTARY
BETWEEN:
VIDEO BOX ENTERPRISES INC.
and
TVB (OVERSEAS) LIMITED
Plaintiffs /
Defendants by Counterclaim
and
WEI BIN YANG
(ALSO KNOWN AS WEIBIN YANG)
and
4011716 CANADA INC.
Defendants /
Plaintiffs by Counterclaim
Motion on behalf of the Defendants for an order permitting Wei Bin Yang to represent the corporate defendant 4011716 Canada Inc. in lieu of a lawyer.
[Rules 120 and 369 of the Federal Court Rules, 1998]
REASONS FOR ORDER AND ORDER
[1] Rule 120 of the Federal Court Rules, 1998 reads as follows:
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120. A corporation, partnership or unincorporated association shall be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave to it to be represented by an officer, partner or member, as the case may be. |
120. Une personne morale, une société de personnes ou une association sans personnalité morale se fait représenter par un avocat dans toute instance, à moins que la Cour, à cause de circonstances particulières, ne l'autorise à se faire représenter par un de ses dirigeants, associés ou membres, selon le cas. |
[2] Definite evidence must be submitted by an applicant in connection with such a motion. In S.A.R. Group Relocation Inc. et al. v. Canada (Attorney General) (2002), 289 N.R. 163, at 164, the Federal Court of Appeal noted the following:
For the court to make such an order in these circumstances it must be satisfied that the corporations are truly unable to pay for a lawyer and that the person sought to be allowed to represent them has indeed been authorized by the corporations to represent them. (Source Services Corp. v. Source Personal Inc. (1995), 105 F.T.R. 42 (T.D.); NsC Diesel Power Inc. (Bankrupt), Re (1995), 96 F.T.R. 161 (T.D.)). There is no clear evidence here on either point. Further, it is relevant to consider whether the proposed representative would also be a witness, as counsel cannot appear in cases where they are witnesses. (See Kobetek Systems Ltd. v. Canada, [1998] F.T.R. Uned. 9; [1998] 1 C.T.C. 308).
(My emphasis.)
[3] The evidence presented in the case at bar is far from meeting these evidentiary requirements. In particular, I am satisfied that Wei Bin Yang will inevitably be the corporation's primary witness. As indicated by the Plaintiffs, Mr. Yang was the person present for the Defendants during the execution of the Anton Piller order, he is the person who has sworn all affidavits on behalf of the Defendants to date, he is the principal of the corporation, he is the person who it is alleged performed the infringing acts.
[4] I am also satisfied that the Defendants' materials produced to date (motion record for the within motion, motion record to set aside the execution of the Anton Piller order, statement of defence and counterclaim, reply to defence to counterclaim) are further evidence of the need for a lawyer on this file representing at least the corporate defendant.
[5] Therefore, the instant motion of the Defendants is denied, costs to follow.
Richard Morneau
Prothonotary
FEDERAL COURT
Date : 20031028
Docket : T-824-03
BETWEEN:
VIDEO BOX ENTERPRISES INC.
and
TVB (OVERSEAS) LIMITED
Plaintiffs/
Defendants by Counterclaim
and
WEI BIN YANG (ALSO KNOWN AS WEIBIN YANG)
and
4011716 CANADA INC.
Defendants/
Plaintiffs by Counterclaim
REASONS FOR ORDER AND ORDER
FEDERAL COURT
COUNSEL AND SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-824-03
VIDEO BOX ENTERPRISES INC. and
TVB (OVERSEAS) LIMITED
Plaintiffs/
Defendants by Counterclaim
and
WEI BIN YANG (ALSO KNOWN AS WEIBIN YANG) and
4011716 CANADA INC.
Defendants/
Plaintiffs by Counterclaim
WRITTEN MOTION EXAMINED IN MONTREAL WITHOUT PERSONAL APPEARANCE OF THE PARTIES
REASONS FOR ORDER OF: Richard Morneau, Esq., Prothonotary
DATED: October 28, 2003
WRITTEN OBSERVATIONS BY:
| Mr. Gary J. McCallum |
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for the Plaintiffs/Defendants by Counterclaim |
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| Mr. Wei Bin Yang |
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for the Defendants/Plaintiffs by Counterclaim |
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SOLICITORS OF RECORD:
| Weisdorf McCallum & Tatsiou: Associates Toronto, Ontario |
|
for the Plaintiffs/Defendants by Counterclaim |
|
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| Ovadia, Sauvageau Montréal, Quebec |
Agent in Montreal for the Defendants/Plaintiffs by Counterclaim
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