SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Enrique Gabriel Villagra, Plaintiff

AND:

DXStorm.com Inc., Microlatin Corporation, Eric Popovic and Tommy Zoran Popovic, Defendants

BEFORE: D. M. Brown J.

COUNSEL:
N. Epstein, for the Plaintiff

L. Smith, for the Defendant, DXStorm.com Inc., the moving party

HEARD: Motion in writing under Rule 30.10

endorsement

Further directions regarding a motion in writing against a non-party

[1] My endorsement of March 26, 2014, gave directions for the bringing of a motion in writing under Rule 30.10 against a non-party, Beanstream Internet Commerce, Inc. The endorsement directed that the motion be brought before me. When the moving party, DXStream.com Inc., filed the motion record, it did not indicate on the face of the motion record that I was to hear the motion. As a result, the file was sent to another judge who gave certain directions.

[2] When counsel are directed to bring a motion in writing before a specific judge, counsel should clearly indicate on the face of all filed court documents the name of the judge who will be hearing the motion. Our court staff do not necessarily know to whom written motions should be directed, so a clear recording of the judge’s name on the court materials would greatly assist them.

[3] In addition to the motion record, I have received correspondence from counsel for the moving party dated April 8, 17 and 23, 2014 which indicates that the parties consent to the order sought.

[4] However, paragraph 1(1) of my March 26, 2014 endorsement required that a copy of that endorsement be delivered with the motion record by April 2, 2014. The motion record did not include the March 26, 2014 endorsement, nor did the affidavit of service on Beanstream recite that a copy of the endorsement was served on that non-party.

[5] Accordingly, although the parties consent to the order sought, I require the moving party to effect proper service of the motion record and the March 26, 2014 endorsement on Beanstream, as well as a copy of this endorsement, by May 2, 2014. In light of the March 7, 2014 correspondence from Beanstream found at Tab 14 of the Motion Record, service on Beanstream may be made by emailing the materials to that company at jlesh@digitalriver.com. Beanstream shall have until May 16 to file any responding materials. No later than May 20, 2014, counsel for the moving party shall send to my attention through the Commercial List Office a letter enclosing the affidavit of service and detailing counsel’s efforts to ascertain from Beanstream what position it takes in respect of the motion.

D. M. Brown J.

Date: April 29, 2014