Date:20000705
Docket:A-798-97
CORAM: LINDEN, J.A.
ISAAC, J.A.
MALONE, J.A.
BETWEEN:
SULCO INDUSTRIES LTD.,
MARK SULLIVAN and MICHAEL SULLIVAN
Appellants
(Defendants)
- and -
JIM SCHARF HOLDINGS LTD.
Respondent
(Plaintiff)
Heard at Toronto, Ontario, Tuesday, July 4, 2000
Judgment delivered from the Bench at Toronto, Ontario,
on Wednesday, July 5, 2000
| REASONS FOR JUDGMENT OF THE COURT BY: MALONE, J.A. |
Date: 20000705
Docket: A-798-97
ISAAC, J.A.
MALONE, J.A.
BETWEEN:
SULCO INDUSTRIES LTD.,
MARK SULLIVAN and MICHAEL SULLIVAN
Appellants
(Defendants)
- and -
JIM SCHARF HOLDINGS LTD.
Respondent
(Plaintiff)
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto,
Ontario on Wednesday, July 5, 2000)
MALONE J.A.
| _. This is an appeal and cross-appeal from an Order of the Trial Division dated November 3, 1997 dismissing both parties" motions for summary judgment without costs. |
| _. These motions raised issues as to the interpretation of a settlement agreement between the parties, the alleged breach of that agreement by the defendants as well as patent infringement due to the manufacture of a second dispenser by the defendants. |
| _. While both counsel contended that the meaning of the words "same texture" in the settlement agreement was unambiguous, both offered conflicting interpretations of those words demonstrating that the trial judge was not in error when he decided to examine the affidavits tendered by the parties. These affidavits spoke to various points on the summary judgment motions including the issue of patent infringement and are conflicting. |
| _. In reaching his decision the learned Trial judge decided that "The least one can say is that the affidavits give conflicting evidence. It is exactly this sort of evidence which needs to undergo the scrutiny of a trial." We agree. In our view this is not an appropriate case for summary judgment. |
| _. We can find no reviewable error in the learned Trial judge"s reasons for order dated November 3, 1997. Both the appeal and the cross-appeal will be dismissed. Costs of this appeal will be in the cause. |
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: SULCO INDUSTRIES LTD., |
| MARK SULLIVAN and MICHAEL SULLIVAN |
- and -
DATE OF HEARING: TUESDAY, JULY 4, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: MALONE J.A. |
Delivered at Toronto, Ontario on Wednesday, July 5, 2000
APPEARANCES: Mr. J. Douglas Wilson
| For the Appellants (Defendants) |
Mr. James E. Mills
| For the Respondent (Plaintiff) |
| SOLICITORS OF RECORD: Ridout & Maybee |
Barristers & Solicitors
One Queen St. East
Suite 2400
Toronto, Ontario
M5C 3B1
| For the Appellants (Defendants) |
Gowling, Strathy & Henderson
Barristers & Solicitors
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
| For the Respondent (Plaintiff) |
FEDERAL COURT OF APPEAL
Date: 20000705
Docket: A-798-97
BETWEEN:
| MARK SULLIVAN and MICHAEL SULLIVAN |
Appellants
(Defendants)
Respondent
(Plaintiff)
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