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Date: |
20050128 |
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Docket: |
S032477 |
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Registry: Vancouver |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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Oral Reasons for Judgment |
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BETWEEN: |
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OMEGA GARDEN INC. |
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PLAINTIFF |
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AND: |
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ALL-ROUND INDUSTRIES
(1996) LTD., POWER
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DEFENDANTS
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AND: |
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TED MACHILDON and BETTY
STOREY |
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DEFENDANTS BY COUNTERCLAIM |
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Counsel for Plaintiff |
J. Dawson |
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Counsel for Defendants |
S. Miller |
[1] THE COURT: This is an application by the defendant for adjournment of the trial which is set for February 21st of this year for five days.
[2] The plaintiff has, to put it simply, sat in the weeds, has created an ambush situation which I disapprove of as one can tell by the language I am using which I rarely use. What has happened is this, is that the plaintiff obtained an interim injunction and then waited to see if the defendants would, in their view, do some acts which would be in contradiction of the injunction. They say that they have.
[3] But in addition, what has occurred is that the defendants’ then solicitor in September, 2003 sent a demand for particulars, a notice to produce and interrogatories. They had nothing in return until December 22nd, 2004. Absolutely no steps were taken by the plaintiff during that time in this action. There was one letter I believe in that time period or slightly before from the plaintiff to the defendant; but, no discoveries were held, no further demands by the plaintiff to the defence. I suspect as far as the defendants were concerned, the action was virtually dead even though the trial was set for this February.
[4] The plaintiff explains their actions in this way which I have already alluded to. They said they had to keep a low profile because if they did they felt that the defendants would then take some action which they say is in breach of the injunction.
[5] The defendants complain that they got no notice of intention to proceed as required by the rules and while I am not deciding the issue of the adjournment of the trial on that basis, I do note that Mr. Cochran’s affidavit is sworn November the 3rd, 2003. His affidavit indicates a breach of the injunction as I understand it. Did I understand it correctly, Mr. Dawson?
[6] MR. DAWSON: Yes.
[7] THE COURT: Thank you. That is all I wanted to know to make sure I understood it correctly. There have been no contempt applications taken. That goes along with the plaintiff’s strategy of sitting in the weeds until they got either further information or something else.
[8] It is the case that the defendants have changed solicitors. I do not decide this application in any way whatsoever based on that change. Nor did the solicitor for the defendants make any argument that that would be a reason for adjournment of the trial.
[9] I appreciate that adjourning the trial may cause some prejudice to the plaintiffs. However, if the injunction has been broached they can take contempt applications for one thing. Secondly, I think that it is appropriate that the trial be adjourned. It is not ready and to force the defendants now to respond to information that they virtually got after Boxing Day even though it was delivered on the 22nd I think would be wrong.
[10] Therefore, the trial is adjourned.
[11] Discoveries will also be adjourned. New date to be set by agreement between counsel.
[12] THE COURT: Costs of the adjournment application to the defendants in any event of the cause.
[13] THE REGISTRAR: The point on the defendant’s motion is that dealt with, Your Lordship?
[14] THE COURT: That is the adjournment, is it not?
[15] THE REGISTRAR: Notice of intention to proceed.
[16] THE COURT: That is just abandoned. We do not need that now. The other matter is just adjourned generally.
“Master R. Barber”