Date: 20000314
Docket: T-2080-98
MONTRÉAL, QUEBEC, THE 14TH DAY OF MARCH, 2000
Present: Mr. RICHARD MORNEAU, PROTHONOTARY
Between:
VEUVE CLICQUOT PONSARDIN
MAISON FONDÉE EN 1772
Plaintiff
AND
LES BOUTIQUES CLIQUOT LTÉE and
MADEMOISELLE CHARMANTE INC. and
3017320 CANADA INC.
Defendants
ORDER
This motion under Rule 107 is dismissed with costs. The questions addressed in paragraph 3 of my order of March 8, 2000 must therefore be answered.
Certified true translation
Bernard Olivier
Date: 20000314
Docket: T-2080-98
Between:
VEUVE CLICQUOT PONSARDIN
MAISON FONDÉE EN 1772
Plaintiff
AND
LES BOUTIQUES CLIQUOT LTÉE and
MADEMOISELLE CHARMANTE INC. and
3017320 CANADA INC.
Defendants
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the defendants under Rule 107 of the Federal Court Rules, 1998 (the Rules) for an order by the Court postponing discovery and the determination of remedial issues until after discovery and trial of the question of liability.
[2] The relevant part of Rule 107 reads as follows:
| 107.(1) The Court may, at any time, order the trial of an issue or that issues in a proceeding be determined separately. |
The context
[3] As the Court record indicates, the plaintiff is suing the defendants in the case at bar for infringement and usurpation of the plaintiff"s exclusive rights in various trade marks and is asking that an injunction be issued, that the defendants" trade marks be expunged and that the defendants be ordered to pay damages to the plaintiff.
[4] It appears that the trade mark "Veuve Clicquot Ponsardin", and all of the other trade marks held by the plaintiff and pleaded in this proceeding, are granted exclusively in relation to wares described as "[Translation ] wines, sparkling wines, champagne and champagne wines". The trade marks "Cliquot" and "Cliquot "un monde à part"" held by the defendants and pleaded in this case are granted exclusively in relation to the services described as "Operation of retail clothing stores in respect of ladies wear and accessories".
Analysis
[5] The respective parties acknowledge that the applicable test is the one formulated by the Court in Illva Saronno S.p.A. v. Privilegiata Fabbrica Maraschino "Excelsior", [1999] 1 F.C. 146 (F.C.T.D.), at p. 154, par. 14, where the Court rules that:
| On a motion under rule 107, the Court may order the postponement of discovery and the determination of remedial issues until after discovery and trial of the question of liability, if the Court is satisfied on the balance of probabilities that in the light of the evidence and all the circumstances of the case (including the nature of the claim, the conduct of the litigation, the issues and the remedies sought), severance is more likely than not to result in the just, expeditious and least expensive determination of the proceeding on its merits. |
[6] Although the preceding extract expresses the applicable test, counsel for the defendants has in a way urged the Court to consider the merits of the plaintiff"s case for the purposes of determining the fate of the motion before us. As the defendants analyze it, the plaintiff"s case is clearly a hard one to make, and accordingly it is preferable to examine the defendants" liability first since there is a strong possibility, they say, that the dispute will go no further.
[7] It is not my intention to go that route and thereby assess the merits of the positions of the respective parties. This is not a motion for summary judgment. There is no reason to depart from the Saronno test. Although the Court, in Saronno, echoes the approach suggested by the defendants (page 156, par. 19), what the Court says is in that case more nuanced, if not ambivalent, and is certainly in the nature of obiter.
[8] On the other hand, referring to an extract from the discovery of the plaintiffs" representative, counsel for the defendants sought to establish that the plaintiff was primarily concerned with some aspects pertaining to the defendants" liability and not the issue of damages or profits; hence the interest in splitting the argument along these lines.
[9] However, the plaintiff"s statement of claim does indeed include a conclusion pertaining to profits or damages, and besides, this statement of claim does not appear to me to differ in its approach from the majority of statements of claim filed in this area. It may be noted in passing that the examinations for discovery, which are quite advanced in this case, also covered " if one refers to the exchanges that occurred in court " certain aspects of the damages.
[10] In any case, the affidavit submitted by the defendants in support of their motion contains no evidence that would allow an assessment as to whether severance at this point of the issue of damages or profits "is more likely than not" to result in the just, expeditious and least expensive determination. For example, although this aspect is raised in the defendants" notice of motion, the affidavit in support of this notice contains no information "[Translation ] as to the expense and effort required to determine the issue of quantum".
[11] In conclusion, I adopt the following statement from Saronno (p. 156, par. 20):
| On balance, I have decided that the defendants have not discharged the burden of establishing on the balance of probabilities that savings of expense and time are sufficiently likely, nor the interest of a just disposition of the proceeding on its merits liability to be advanced, as to justify departing from the general principle that all issues in a proceeding should be dealt with together. |
[12] This motion under Rule 107 shall therefore be dismissed with costs. The questions addressed in paragraph 3 of my order of March 8, 2000 must therefore be answered.
MONTRÉAL, QUEBEC
March 14, 2000
Certified true translation
Bernard Olivier
| LES BOUTIQUES CLIQUOT LTÉE and |
| MADEMOISELLE CHARMANTE INC. and |
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: VEUVE CLICQUOT PONSARDIN |
MAISON FONDÉE EN 1772
Plaintiff
AND
LES BOUTIQUES CLIQUOT LTÉE and
MADEMOISELLE CHARMANTE INC. and
3017320 CANADA INC.
Defendants
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: March 13, 2000 |
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATED: March 14, 2000
APPEARANCES:
Martine Tremblay for the Plaintiff
Brian Riordan for the Defendants
Mathieu Turcotte, student at law
SOLICITORS OF RECORD:
Léger Robic Richard for the Plaintiff
Montréal, Quebec
Pouliot Mercure for the Defendants
Montréal, Quebec
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