Wessel v. Cansco Ltd.

Wessel v. Cansco Ltd.

The court held that the plaintiffs' failure to file status review materials resulted from a solicitor's slip (clerical error by incoming counsel) constituting an 'accident or mistake' under Rule 399(1)(b), and that the plaintiffs disclosed a prima facie case they were actively prosecuting the action; accordingly the prothonotary's reinstatement order was upheld and the appeal dismissed.

Citation
2007 FC 47
Parties
Plaintiff (defendant by Counterclaim): Warren Wessel; Plaintiff (defendant by Counterclaim): Westmen Oilfield Rentals (Alberta) Ltd.; Defendant (plaintiff by Counterclaim): Cansco Ltd.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
18 January 2007
Procedural Posture
Patent Infringement; Appeal From Prothonotary Reinstatement Order / Appeal (de Novo Review)
Outcome
Appeal dismissed; reinstatement order upheld; costs awarded to plaintiffs $1,000
Legal Topics
Status Review, Dismissal for Delay, Rule 399 Reinstatement, Solicitor's Mistake, Costs
Source Language
English
Patent Law Civil Procedure Federal Court Practice Status Review Dismissal for Delay Rule 399 Reinstatement Solicitor's Mistake Costs

Case Brief

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Parties

Warren Wessel

Plaintiff (defendant by Counterclaim)

Westmen Oilfield Rentals (Alberta) Ltd.

Plaintiff (defendant by Counterclaim)

Cansco Ltd.

Defendant (plaintiff by Counterclaim)

Procedural Posture

Patent Infringement; Appeal From Prothonotary Reinstatement Order / Appeal (de Novo Review)

Legal Issues

  1. 1 Whether the dismissal order should be set aside under Rule 399(1)(b)
  2. 2 Whether the plaintiffs demonstrated an accident or mistake that led to failure to file status review materials by the deadline
  3. 3 Whether the plaintiffs disclosed a prima facie case why the dismissal order should not have been made

Ratio Decidendi

The court held that the plaintiffs' failure to file status review materials resulted from a solicitor's slip (clerical error by incoming counsel) constituting an 'accident or mistake' under Rule 399(1)(b), and that the plaintiffs disclosed a prima facie case they were actively prosecuting the action; accordingly the prothonotary's reinstatement order was upheld and the appeal dismissed.

Court Disposition

Appeal dismissed; reinstatement order upheld; costs awarded to plaintiffs $1,000

Orders

  • Defendant's appeal of Prothonotary Tabib's Order of November 17, 2006 is dismissed
  • Costs awarded to the plaintiffs in the cause in the amount of $1,000