7732716 Canada Inc. v. GND Productions Corp.
- Citation
- 2013 FC 1038
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Federal Court
- Decision
- 11 October 2013
- Posture
- Civil Motion for Default Judgment / Motion Stage (decision on Motion for Default Judgment)
- Language
- English
More details
- Court
- Federal Court
- Decision
- 11 October 2013
- Posture
- Civil Motion for Default Judgment / Motion Stage (decision on Motion for Default Judgment)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The motion for default judgment was dismissed because the plaintiff failed to comply with the Court's direction to permit exploration of personal service and cross-examination of the affidavit deponent; as a result MTC-W Inc. succeeded on the motion and is entitled to costs and directed to file a draft Statement of Defence forthwith.
Court disposition
Motion for default judgment dismissed; costs awarded to defendant MTC-W Inc.
Orders
- The plaintiff's motion for default judgment is dismissed.
- Costs awarded to defendant MTC-W Inc.
- Defendant MTC-W Inc. shall file forthwith a draft Statement of Defence in the form contained in its motion materials.
- The action shall proceed in its normal course.
- MTC-W Inc. may file submissions on costs within 15 days of this Order.
- The plaintiff may file a reply on costs within 15 days thereafter.
02
Material facts
Parties
7732716 CANADA INC. f.a.s.r.s. MISS TEEN CANADA
Plaintiff Counsel: Marc BoudreauGND PRODUCTIONS CORP. f.a.s.r.s. MISS TEEN CANADA WORLD
Defendant Counsel: Brian P. Isaac; Mark G. Biernacki; Patrick M. RoszellMTC-W INC. f.a.s.r.s. MISS TEEN CANADA WORLD
Defendant Counsel: Brian P. Isaac; Mark G. Biernacki; Patrick M. RoszellAmounts and remedies
- Costs Submissions Timeline Days for Defendant: 15
- Costs Submissions Timeline Days for Plaintiff Reply: 15
03
Procedural history
Posture
Civil Motion for Default Judgment / Motion Stage (decision on Motion for Default Judgment)
04
Questions and positions
Legal issues
- 01
Whether the defendants were personally served
- 02
Whether the plaintiff complied with the Court's direction to permit exploration of personal service and cross-examination
- 03
Whether the successful defendant is entitled to costs
Party arguments
- Applicant
- Plaintiff sought default judgment on the basis that MTC-W Inc. was personally served and filed further evidence in support of service.
- Respondent
- Defendant MTC-W Inc. contested personal service, requested cross-examination of the deponent and alleges it received no reply to its request for the deponent's availability.
05
Court’s reasoning
Legal principles
- 01
Direction of Madam Justice Mary Gleason (Aug 12, 2013) / Federal Court practice
Parties must comply with directions of the Court to allow proper resolution of contested issues such as service.
- 02
Federal Court practice and discretionary costs jurisdiction
A party successful on a contested motion is generally entitled to costs.
- 03
Civil procedure principles / Federal Court Rules
A party opposing affidavit evidence is entitled to seek cross-examination of the deponent to test the evidence on issues such as service.
06
Ratio, limits and disposition
Ratio decidendi
The motion for default judgment was dismissed because the plaintiff failed to comply with the Court's direction to permit exploration of personal service and cross-examination of the affidavit deponent; as a result MTC-W Inc. succeeded on the motion and is entitled to costs and directed to file a draft Statement of Defence forthwith.
Obiter and limits
- Plaintiff submitted further evidence not contained in original materials without addressing the defendant's request for cross-examination.
- The action will proceed in its normal course after the defendant files a draft Statement of Defence.
Court disposition
Motion for default judgment dismissed; costs awarded to defendant MTC-W Inc.
- The plaintiff's motion for default judgment is dismissed.
- Costs awarded to defendant MTC-W Inc.
- Defendant MTC-W Inc. shall file forthwith a draft Statement of Defence in the form contained in its motion materials.
- The action shall proceed in its normal course.
- MTC-W Inc. may file submissions on costs within 15 days of this Order.
- The plaintiff may file a reply on costs within 15 days thereafter.
Source and reliance status
Federal Court · 11 October 2013
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Federal Court
Judgment· 11 October 2013
7732716 Canada Inc. v. GND Productions Corp. Court (s) Database Federal Court Decisions Date 2013-10-11 Neutral citation 2013 FC 1038 File numbers T-819-13 Decision Content Date: 20131011 Docket: T-819-13 Citation: 2013 FC 1038 Ottawa, Ontario, October 11, 2013 PRESENT: The Honourable Mr. Justice Annis Docket: T-819-13 BETWEEN: 7732716 CANADA INC. f.a.s.r.s. MISS TEEN CANADA Plaintiff and GND PRODUCTIONS CORP. f.a.s.r.s. MISS TEEN CANADA WORLD and MTC-W INC. f.a.s.r.s. MISS TEEN CANADA WORLD Defendants
REASONS FOR ORDER AND ORDER [1] The plaintiff seeks default judgment against the defendants. The defendants contest that they were personally served. [2] The matter was considered by Madam Justice Mary Gleason who directed on August 12, 2013, an adjournment of the motion for default judgment to September 30, 2013 to permit the defendant, MTC-W Inc. time to consider the motion materials, and if it considered it appropriate, to conduct a cross examination of the deponent of the affidavit in support of the motion. [3] By way of letter dated August 20, 2013, MTC-W Inc.’s counsel requested the availability of the deponent for cross examination over the following three weeks. There is no evidence that a reply was provided to the letter. The defendant, MTC-W Inc. has deposed that none was received. [4] Instead, the plaintiff, on October 1, 2013, proceeded to make further submissions in which it claimed that the defendant, MTC-W Inc. was personally served, providing further evidence not contained in the original motion materials, but without reference to the request for cross examination of its deponent. [5] In the circumstances, due to the failure of the plaintiff to comply with the Direction of this Court which was provided in order to explore the issue of personal service, its motion for default judgment is dismissed. The defendant, MTC-W Inc. shall file forthwith a draft Statement
of Defence in the form contained in its motion materials. The action shall thereafter proceed in its normal course. [6] As the defendant, MTC-W Inc. has succeeded on the motion which proceeded despite its earlier request that the plaintiff withdraw the motion and proceed with the action, it is entitled to its costs. It may file submissions within 15 days of this Order. The plaintiff may reply within 15 days thereafter.
ORDER THIS COURT ORDERS that the plaintiff’s motion for default judgment is dismissed with costs to the defendant, MTC-W Inc. "Peter Annis" Judge
FEDERAL COURT
SOLICITORS OF RECORD Docket: T-819-13 STYLE OF CAUSE: 7732716 CANADA INC., f.a.s.r.s. MISS TEEN CANADA v GND PRODUCTIONS CORP., f.a.s.r.s. MISS TEEN CANADA WORLD and MTC-W INC., f.a.s.r.s. MISS TEEN CANADA WORLD MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 REASONS FOR ORDER AND ORDER: ANNIS J. DATED: October 11, 2013 APPEARANCES: Marc Boudreau For The Plaintiff 7732716 CANADA INC. f.a.s.r.s. MISS TEEN CANADA Brian P. Isaac Mark G. Biernacki Patrick M. Roszell For The Defendants GND PRODUCTIONS CORP. f.a.s.r.s. MISS TEEN CANADA WORLD AND MTC-W INC. f.a.s.r.s. MISS TEEN CANADA WORLD SOLICITORS OF RECORD: CMB Avocats Inc. Barristers and Solicitors Montreal, Quebec For The Plaintiff 7732716 CANADA INC. f.a.s.r.s. MISS TEEN CANADA Smart & Biggar Barristers and Solicitors Toronto, Ontario For The Defendants GND PRODUCTIONS CORP. f.a.s.r.s. MISS TEEN CANADA WORLD AND MTC-W INC. f.a.s.r.s. MISS TEEN CANADA WORLD
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