Date: 20031212
Docket: T-1952-02
Citation: 2003 FC 1440
Between:
NEW TRADITIONS MUSIC
Plaintiff
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ZEKE'S DISTRIBUTION CORPORATION, ZEKE'S GALLERY,
CHRIS HAND, FREDERICK D. SNEIDER, CHRISTOPHER E. GOBEIL,
DANIEL F. O'CONNOR, NEIL RAYMOND, ANDREW FRANK,
DAVE STURTON, LARRY CASSINI, STEVE BURLIUK,
ANDREA CARROL and KENNY SMILOVITCH
Defendants
REASONS FOR ORDER
PINARD J.
[1] In view of paragraph 399(1)(b) of the Federal Court Rules, 1998, SOR/98-106;
[2] In view of the facts and evidence, in particular the circumstances described in the affidavit of André Legault, filed in support of the instant motion;
[3] Considering the well-settled rule that "an error by counsel must not prevent the safeguarding of the rights of the party he or she represents where it is possible to rectify the error without injustice to the opposing party" (see e.g., Murray Bowen v. City of Montréal, [1979] 1 S.C.R. 511, and Construction Gilles Paquette ltée v. Les Entreprises Végo ltée, [1997] 2 S.C.R. 299);
[4] Whereas this is a situation where it is possible to rectify the consequences of an error by the defendants' counsel without injustice to the plaintiff, since:
1. nearly all the defendants' affidavits of documents have now been given to counsel for the plaintiff;
2. costs on the motion awarded by the prothonotary in the decision at issue will have to be borne by the defendants;
3. the proceeding will now be a specially managed proceeding; and
4. no award of costs will be made to the defendants despite success on this motion opposed by the plaintiff.
[5] The motion is allowed in part. The decision by Prothonotary Lafrenière on October 28, 2003 is quashed. No costs are awarded on the instant motion. However, the defendants shall pay the plaintiff the costs of its motion before Prothonotary Lafrenière on October 27, 2003 when they are assessed, regardless of the outcome of the case. The proceeding will henceforth be a specially managed proceeding. Counsel will file with the Registry of the Court by December 23, 2003 at the latest separate documents, or a joint document, setting out future stages in the instant proceeding and including a proposed schedule for completion of those stages. The judge responsible for the specially managed proceeding will give any further directions necessary.
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OTTAWA, ONTARIO
December 12, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1952-02
STYLE OF CAUSE: NEW TRADITIONS MUSIC v. ZEKE'S DISTRIBUTION CORPORATION, ZEKE'S GALLERY, CHRIS HAND, FREDERICK D. SNEIDER, CHRISTOPHER E. GOBEIL,
DANIEL F. O'CONNOR, NEIL RAYMOND, ANDREW FRANK, DAVE STURTON, LARRY CASSINI, STEVE BURLIUK, ANDREA CARROL and KENNY SMILOVITCH
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 8, 2003
REASONS FOR ORDER BY: Pinard J.
DATED: December 12, 2003
APPEARANCES:
Kenneth D. Hanna FOR THE PLAINTIFF
Yves Lemieux FOR THE DEFENDANTS
SOLICITORS OF RECORD:
RIDOUT & MAYBEE LLP FOR THE PLAINTIFF
Toronto, Ontario
ALARIE, LEGAULT, BEAUCHEMIN, FOR THE DEFENDANTS
PAQUIN, JOBIN, BRISSON & PHILPOT
Montréal, Quebec
Date: 20031212
Docket: T-1952-02
Ottawa, Ontario, December 12, 2003
Present: Pinard J.
Between:
NEW TRADITIONS MUSIC
Plaintiff
- and -
ZEKE'S DISTRIBUTION CORPORATION, ZEKE'S GALLERY,
CHRIS HAND, FREDERICK D. SNEIDER, CHRISTOPHER E. GOBEIL,
DANIEL F. O'CONNOR, NEIL RAYMOND, ANDREW FRANK,
DAVE STURTON, LARRY CASSINI, STEVE BURLIUK,
ANDREA CARROLL and KENNY SMILOVITCH
Defendants
Further to the motion by defendants Zeke's Distribution Corporation, Zeke's Gallery, Chris Hand, Frederick D. Sneider, Christopher E. Gobeil, Daniel F. O'Connor, Neil Raymond, Andrew Frank, Dave Sturton, Larry Cassini, Steve Burliuk and Andrea Carroll, dated November 17, 2003, to:
1. allow an application for withdrawal and/or revision and/or cancellation of the judgments or orders rendered on October 27, 2003 (sic) by Prothonotary Roger R. Lafrenière, who allowed in part the motions by the plaintiff dated October 16, 2003; and
2. cancel and/or revise the said judgments or orders on these motions, which were rendered in the absence, by error and in good faith, of counsel for the said defendants, at the hearing of the said motions, the absence of counsel and the said defendants being due to a date for filing the said motions which by error or inadvertently was recorded as a date other than the correct date in the personal diary of counsel for the said defendants; and
3. dismiss the said motions by the plaintiff dated October 16, 2003 to strike the defence of the said defendants and for ex parte judgment on the plaintiff's action; and
4. automatically extend the deadline in which the said defendants could file a reply to the said motions by the plaintiff, including a seven-day extension of the deadline from the judgment to be rendered for filing the affidavits of the said defendants in support of their defence; and
5. award all costs against the plaintiff unless there is no opposition.
ORDER
The motion is allowed in part. The decision by Prothonotary Lafrenière on October 28, 2003 is quashed. No costs are awarded on the instant motion. However, the defendants shall pay the plaintiff the costs of its motion before Prothonotary Lafrenière on October 27, 2003 when they are assessed, regardless of the outcome of the case. The proceeding will henceforth be a specially managed proceeding. Counsel will file with the Registry of the Court by December 23, 2003 at the latest separate documents, or a joint document, setting out future stages in the instant proceeding and including a proposed schedule for completion of those stages. The judge responsible for the specially managed proceeding will give any further directions necessary.
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.