PRACTICE |
Judgments and Orders |
Reversal or Variation |
Society of Composers, Authors and Music Publishers of Canada v. 960122 Ontario Ltd.
A-554-02
2003 FCA 256, Sexton J.A.
5/6/03
9 pp.
Appeal from Trial Division decision dismissing motion to set aside referee's order allegedly varying Judge's order-- Appellant awarded default judgment against respondent, ordering respondent to pay damages and profits arising from infringement, amount of damages, profits to be determined at reference--Appellant entitled to reference on ex parte basis--Referee set date for hearing of reference, ordered appellant personally serve on respondent copy of order and any affidavit evidence appellant intended to rely upon at hearing of reference--Appellant first appealed by motion to Trial Division, seeking order setting aside referee's order on basis had erred in requiring appellant to serve respondent with notice of reference, arguing this amounted to variance of Judge's order entitling appellant to reference on ex parte basis --Motion dismissed on ground no appeal lies from interlocutory order of referee; that order requiring notice be served on respondent did not amount to variance of Judge's order--Appeal allowed--Appeals lie from interlocutory judgment from Trial Division pursuant to Federal Court Act, s. 27(1)(c); appeals from interlocutory orders of prothonotaries lie; therefore, relying on Federal Court Rules, 1998, r. 4, by analogy, appeals from interlocutory orders of referees should lie--View supported by Federal Court Rules, 1998, rr. 153(2), 163--However, referees have no power, generally speaking, to vary terms of reference--By requiring appellant to give respondent notice of reference, referee effectively varied Judge's order which entitled appellant to proceed to reference on ex parte basis--Referee lacked jurisdiction to do this--Federal Court Act, R.S.C., 1985, c. F-7, s. 27(1)(c)--Federal Court Rules, 1998, SOR/98-106, rr. 4, 153(2), 163.