Date: 19991020
Docket: T-1858-97
OTTAWA, ONTARIO, THIS 20th DAY OF OCTOBER 1999
PRESENT: MR. JUSTICE J.E. DUBÉ
BETWEEN:
AEROGROUP INTERNATIONAL INC.
Plaintiff
- and -
BATA INDUSTRIES LIMITED
Defendant
ORDER
The motion is dismissed with costs.
Judge
Date: 19991020
Docket: T-1858-97
BETWEEN:
AEROGROUP INTERNATIONAL INC.
Plaintiff
- and -
BATA INDUSTRIES LIMITED
Defendant
REASONS FOR ORDER
DUBÉ J:
[1] This motion by the plaintiff is for judgment pursuant to Rules 392(1) and 400(1) of the Federal Court Rules, 1998, dismissing the plaintiff's action without costs or, in the alternative, an order pursuant to Rule 402 allowing the plaintiff to discontinue its action pursuant to Rule 165 of the Rules without costs. In either event, the plaintiff seeks an order pursuant to Rule 47(1) releasing it from the $45,000 bond filed with the Court as security for the defendant's costs in this action.
[2] The action itself, launched on August 27, 1997, is for the infringement of the plaintiff's registered trade-mark AEROSOLE & Design for use in association with footwear by the defendant with the trade-mark AIRSUPPLY & Design.
[3] The grounds for the instant motion are that the parties engaged in settlement discussions from February to April 1999. In fact, there were several attempts to settle this action through correspondence between both parties, mostly initiated by plaintiff's counsel. On April 29, 1999, plaintiff's counsel forwarded a draft Settlement Agreement approved by his client and a Consent Motion to dismiss the action without costs. However, the defendant never signed that agreement. Plaintiff's counsel argues that their correspondence shows that both parties were virtually in agreement, but that the defendant held back, knowing that the bond filed by the plaintiff as security for costs was a sword of Damocles hanging over the plaintiff's head.
[4] That could very well be, but the agreement to settle without costs remains unsigned and the correspondence shows that several points were not definitely agreed to.
[5] It is trite law that an agreement is only reached when there is offer and acceptance. There must be an acceptance simpliciter. The offeree must unreservedly assent to the exact terms proposed by the offeror. At no point throughout the correspondence did the defendant accept all the terms proposed by the plaintiff. Counter offers constitute a rejection of the previous offers. Clearly, the Court cannot accept these various attempts at settlement as an acceptance by the defendant of the plaintiff's offer to discontinue its action without costs.
[6] Under Rule 402, unless otherwise ordered by the Court or agreed by the parties, a party (in this case, the defendant) against whom an action has been discontinued is entitled to costs forthwith. Obviously, the aborted attempts at settlement are not sufficient grounds for the Court to allow discontinuance without costs.
[7] Consequently, the instant motion must be dismissed with costs. The plaintiff is free to continue its action or to discontinue it with costs payable to the defendant. Release from the bond would follow such a discontinuance.
[8] The motion is dismissed with costs.
OTTAWA, Ontario
October 20, 1999
Judge
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