The Grief Recovery Institute, LLC v. 1668246 Ontario Inc., 2012 FC 888

This was an appeal by the Defendants of the order of a Prothonotary granting the Plaintiffs’ request for special management of this action, an action in which the Plaintiffs claim, among other things, copyright infringement and passing off. At the time of the hearing of this motion, the parties were at the close of the pleadings stage of the action.

The Plaintiffs filed a letter with the Federal Court requesting that the action be case managed for essentially two reasons: (1) to obtain a trial date at the earliest availability and avoid further delay; and 
(2) to have in place a scheduling order, which will streamline all pre-trial matters. The Defendants did not consent on the ground that the request was premature. With respect to the Prothonotary’s decision granting the Plaintiff’s initial request, the Defendants submitted that it should be set aside because: (i) they did not consent; (ii) they were not permitted to be heard, which constituted a denial of natural justice; (iii) the request for case management was treated as an ex partemotion without any evidence filed; (iv) it was an error to grant the Plaintiff’s order since the action is not complex litigation; and (v) the Prothonotary erred in law by automatically granting case management on request.

The Court could see no ground upon which it could find that the exercise of discretion by the Prothonotary was clearly wrong. What remained was the issue of whether the decision to issue the order was  based upon a wrong principle. The Court denied the Defendants’ argument that it was denied natural justice, since no rights were being disposed of. While the Court conceded that the Prothonotary’s decision is “open to criticism that he acted precipitously” and that he “could have waited” to issue the order, the Court did not accept the argument that the Prothonotary

was wrong in concluding that case management was appropriate in this case. It was a reasonable decision. While the Defendants argued that case management would be prejudicial to their interests (i.e. they would be foreclosed from bringing a motion for summary judgment, based on a reading of Rule 213(1) of the Federal Court Rules (the “Rules”), the draft Scheduling Order was crafted so as to limit the application and effect of Rule 213. In the Court’s view, this was a complete answer to the Defendants’ claim that they would suffer prejudice, since it is also consistent with the general principle in Rule 3 of the Rules. The Court also added that there is no requirement to show some form of delay by the parties prior to the issuance of such an order. In fact, it was noted that the relevant Practice Notice (May 2009) states that it should be made as early as possible. Therefore, the Defendants’ appeal was dismissed.

The Plaintiffs sought and were awarded solicitor and client costs based on the fact that this appeal should not have been brought. The Court held that a less costly resolution could have been sought by a motion in writing to the Prothonotary to reconsider his Order.