A Federal Court of Appeal judge has cautioned counsel on both sides in a case for failing "to live up to the letter and spirit of the Federal Courts Rules."
"He who plays with fire ends up burning himself. In this case, both parties have been playing with fire and shall live with the consequences of it," wrote Justice Gilles Létourneau in the Dec. 20, 2006 judgment.
This ruling in Remo Imports Ltd. v. Jaguar Cars Ltd. is the latest in the trademarks dispute between the luggage company and the luxury carmaker. Richard Uditsky and Arthur Garvis of McMillan Binch Mendelsohn LLP acted as counsel for the appellants, Remo, in the case, while J. Douglas Wilson and Pauline Bosman at Ridout & Maybee LLP acted for the respondents, Jaguar.
The decision notes that the "saga" began in August 2006, when Federal Court of Appeal Justice J. Edgar Sexton dismissed the Remo's request to file a memorandum in excess of 30 pages. The following month, the appellant added endnotes to its memorandum, which the court noted "Was attempting to circumvent the order of Sexton J.A." and refused the memorandum for filing and sent it back to the appellant.
In November, the court again noted that the parties "are circumventing the prior order of this court limiting the length of their memorandum to 30 pages" and were asked to re-file. The respondents then had their supplemental appeal book and Appendix C to their memorandum struck from the record.
Court documents show that both parties submitted "defective" memoranda more than 30 pages long, did not respect the margins, and violated Sexton's order.
"The appellant and the respondents have been engaged in a war as to the contents of their respective memorandum of fact and law [memorandum]. The war has been conducted at the expenses of the court and scarce judicial resources," noted Létourneau.
The court gave both parties until last week to serve and file a new memorandum that "strictly complies with rules 65 and 70 of the Federal Courts Rules."
Létourneau noted that "failure by any party to abide by this court's order will lead to sanctions ranging from a deemed waiver by the defaulting party of its right to file a memorandum, dismissal of the proceeding without further notice and the imposition of costs to counsel of record, to the issuance of a show cause order as to why the defaulting counsel of record should not be found guilty of contempt."
"So far, both parties have been abusing the process of the court with impunity. The buck stops here," he added.
Ron Dimock, a partner of Dimock Stratton LLP, told Law Times the comments in the ruling were directed more towards the profession in general and the IP bar in particular.
"The lawyers in that particular case just happened to be the latest transgressor of the spirit of the rules. Lawyers have been trying to circumvent the straightforward rules of the Federal Court on the length of memoranda for some time now by putting in end notes and appendices to the memorandum of fact and law and I think, as Justice Létourneau says, the buck stops here and they were trying to end this practice.
"The court wants the lawyers in cases to hone their arguments, hone the written arguments particularly. Written arguments have become a very important part of the persuasion process," he added.
"I am not criticizing the lawyers in this case at all, this is really a complaint that the court has about most lawyers; they tend to get as much into the memorandum of fact and law as they possibly can and the pages become quite dense as a result, with very few breaks for paragraphs and very small print.
"On the other hand, if the judges are going to impose restrictions on the lawyers, which I think are fair under the rules, I think anybody ought to be able to say what they want to say in 30 pages or less, the judges - and I have no doubt that they're all doing this - have an obligation to read the factum closely and to not only read between the lines but think between the lines."
"I think it's a two-way obligation here and I think the court is just saying that for some time now, the lawyers haven't been living up to their obligations of writing concisely and clearly."
He added that memos are likely too long because the statement of facts takes up much of the 30-page limit.
Don Cameron, a partner at Ogilvy Renault LLP in Toronto, noted that in the IP area, "The nature of our cases is that they're usually complicated and fact-driven, all of which results in it being difficult to fit everything you want to say into the 30 pages the court requires."
He added, however, that in some cases within this area of law, specifically in the patent area, it is often difficult to respond to a pleading of over 100 pages in fewer than 30 pages.
"I think it's a balancing act. The court has to recognize that in some cases they have to exceed the length. In this case, clearly the court said we don't need more than 30 pages."
Cameron said the decision affects all counsel working on Federal Court matters and it's a strong lesson that the rules are the rules and they must be obeyed.
"The threat here of reacting against the parties by striking out the proceeding, imposing costs against counsel, or even finding counsel in contempt, is a very loud message that you rarely see," he added.
Dimock said: "Lawyers who read that decision and look at their own work will realize each can do better and I don't think there's any case that could not be presented in the page restrictions that are given today."
Ridout & Maybee were unable to comment on the case as it is currently under appeal. Counsel from McMillan Binch Mendelsohn could not be reached for comment.