Date: 19990212
Docket: T-1913-95
BETWEEN:
PROCTER & GAMBLE INC. and
RICHARDSON-VICKS INC.,
Plaintiffs,
- and -
OMA INTERNATIONAL INC., AYESHA ALAM,
ABE GRUDA and PAUL DOUBILET, c.o.b. as
the partnership A. GRUDA PRODUCTS CO.,
Defendants.
REASONS FOR ORDER
MULDOON, J.
[1] The plaintiffs, Procter & Gamble Inc. and Richardson-Vicks Inc., brought a motion for default judgment against the defendants, Ayesha Alam and OMA International Inc., pursuant to rule 210 of the Federal Court Rules, 1998, SOR/98-106. The motion was heard in Toronto on October 21, 1998. At the conclusion of the hearing, the plaintiffs" motion was granted. These are the reasons for that order.
[2] The plaintiffs commenced this action by way of statement of claim, filed on September 12, 1995, alleging, inter alia, infringement of certain trade-marks which they own. The trade-marks relate to various hair shampoos and conditioners, toothpaste, and skin cream. At the time they filed their statement of claim, the plaintiffs also brought a motion ex parte and in camera, seeking an interim injunction and an Anton Piller Order. The motion was granted on September 12, 1995, and executed on the following two days.
[3] The plaintiffs seized some 236 drums of shampoo, conditioner, skin cream, and toothpaste from the defendants during the execution of the Anton Piller Order. These materials are currently being stored in a warehouse at the plaintiffs" expense.
[4] At the time the Anton Piller Order was executed, the plaintiffs served the defendants with the statement of claim. To date, however, the defendants Ayesha Alam and OMA International Inc. have not filed a statement of defence. Indeed, they did not submit any written representations for this motion. The defendants Abe Gruda and Paul Doubilet filed a statement of defence on October 4, 1995. It should be noted that default judgment is not being sought against these latter two defendants at this time.
[5] In their materials filed in support of this motion, the plaintiffs include several letters sent to counsel for the defendants Ayesha Alam or OMA International Inc. in an attempt to deal with the drums of product being stored at the plaintiffs" expense. The letters, dated June 18, 1996, July 31, 1996, October 4, 1996, October 7, 1996, and August 14, 1998, detail the plaintiffs" attempts to initiate communication with counsel, who chose not to reply. The last three letters notified the defendants of the plaintiffs" intention to seek default judgment, yet still failed to elicit any response from the defendants. The letters are attached as exhibit D to the affidavit of Ahmed Bulbulia, sworn October 14, 1998 and filed in support of this motion.
[6] Rule 210 of the Federal Court Rules, 1998 provides for default judgment, replacing former rules 432-437. Under the new formulation, where a defendant fails to serve and file a statement of defence within the time limits prescribed by rule 204, the plaintiff may move for default judgement. The rule reads as follows:
| 210. (1) Where a defendant fails to serve and file a statement of defence within the time set out in rule 204 or any other time fixed by an order of the Court, the plaintiff may bring a motion for judgment against the defendant on the statement of claim. |
| 210. (1) Lorsqu"un défendeur ne signifie ni ne dépose sa défense dans le délai prévu à la règle 204 ou dans tout autre délai fixé par ordonnance de la Cour, le demandeur peut, par voie de requête, demander un jugement contre le défendeur à l"égard de sa déclaration. |
| (3) A motion under subsection (1) shall be supported by affidavit evidence. |
| (3) La preuve fournie à l"appui de la requête visée au paragraphe (1) est établie par affidavit. |
| (4) On a motion under subsection (1), the Court may |
| (a) grant judgment; |
| (b) dismiss the action; or |
| (c) order that the action proceed to trial and that the plaintiff prove its case in such a manner as the Court may direct. |
| (4) Sur réception de la requête visée au paragraphe (1), la Cour peut: |
| (a) accorder le jugement demandé; |
| (b) rejeter l"action; |
| (c) ordonner que l"action soit instruite et que le demandeur présente sa preuve comme elle l"indique. |
[7] The Court"s rule 204 requires that a defence be filed within 30 days after service of the statement of claim, if the defendant is served within Canada, 40 days if the defendant is served in the United States, and 60 days if the defendant is served elsewhere.
[8] Under the rules of this Court, default judgment is never automatic, but rather a matter in the realm of the Court"s discretion. In this case, the defendants Ayesha Alam and OMA International Inc. have declined to participate in these proceedings and have not served and filed a statement of defence pursuant to rule 204. This is an appropriate situation for default judgment to be granted, and accordingly, this Court exercises its discretion in favour of the plaintiffs, and their motion for default judgment pursuant to rule 210 is granted.
Judge
Ottawa, Ontario
February 12, 1999