Digests

Viacom Ha! Holding Co. v. Doe

T-550-99, T-823-99, T-1058-98, T-1064-98

2002 FCT 13, Pelletier J.

7/1/02

21 pp.

Motion by defendants seeking order directed to former counsel for plaintiffs to show cause why he should not be found in contempt of court, order dismissing action for delay, abuse of process--Notice of motion signed by Keith Bowman, member of Law Society of British Columbia, acting for corporate defendants--First head of relief sought order that Mr. Lipkus, former counsel for plaintiffs, be required to show cause why should not be found in contempt of court for disobeying order of Muldoon J.--Defendants alleging Mr. Lipkus misrepresented number of persons in attendance at execution of order--Purpose of limitation in order as to number of persons to be present to prevent climate of intimidation at time of service, explanation of order--Not precluding additional persons being employed to assist in removal of goods once order explained, defendants consented to removal of goods--Report on execution of order filed with court should make clear who was present at which stage of execution--Defendants claiming plaintiffs dilatory in moving action forward--Plaintiffs justifying themselves by pointing to large number of interlocutory applications, pending appeal of review motion--Proof of counterfeiting tendered at review motion merely prima facie proof, not conclusive of issue--Given that plaintiffs entitled to seize defendants' stock pending trial of matter, incumbent on plaintiffs to take steps to move matter forward expeditiously--Positive obligation arising from remedy which Court granted plaintiffs--On balance, delay in moving matter forward but delay to which defendants, Court have contributed--Not appropriate to dismiss claim for delay, abuse of process--Problem better handled through case management process--On December 10, 2001, counsel forwarded to Registry of Court package of materials in compliance with undertakings--Unseemly for plaintiffs, counsel to behave as though Court will grant them rolling Anton Piller orders as of right, ratify seizures as matter of course, give them judgment whenever moved to request it--Orders in question all discretionary orders--Bowman could simply have lent name to proceedings to satisfy Court's requirement corporate entities be represented by counsel--Cost associated with such course of action-- Unproven allegations of fraud, other serious misconduct can result in award of solicitor-client costs--Costs of four motions assessed at $500 payable by Bowman, $1,000 payable by defendants jointly and severally--Bowman not to recover from clients amounts payable by him by way of disbursement, otherwise--Motion dismissed.