Digests

Marvel Characters, Inc. v. Randy River Inc.

T-1962-01

2003 FC 986, Lafrenière P.

20/8/03

6 pp.

Parties in copyright infringement action agreed to conduct first round of examinations for discovery of respective representatives in Toronto on July 16, 17, 2003--Counsel for plaintiffs waived right to discovery, advised plaintiffs' representative would be available in New York, not Toronto-- Defendant maintained plaintiffs breached agreement regarding conduct of examination for discovery, moved for order dismissing action under r. 97--Once agreement reached, parties expected to honour agreement, or face consequences provided by r. 97--Where person fails to attend oral examination, r. 97 provides Court with discretion to dismiss proceeding, to order person to attend at own expense, order person, party on whose behalf person examined to pay costs of examination--Defendant's refusal to conduct examination in New York fully justified--Plaintiffs had two options: proceed with examination in Toronto as agreed, or seek directions from Court--Plaintiffs did neither--Failed to attend scheduled examination, in breach of Court-ordered deadline for completing first round of discoveries by July 21, 2003-- Such conduct by plaintiffs should be discouraged by invoking sanction provisions under r. 97--Plaintiffs' representative required to attend examination for discovery in Toronto-- Defendant not required to pay travel expenses--Granted extension of time to complete examination for discovery of plaintiffs--Federal Court Rules, 1998, SOR/98-106, r. 97.