Docket:
A-125-13
Citation: 2013
FCA 272
CORAM:
EVANS J.A.
TRUDEL J.A.
WEBB J.A.
BETWEEN:
|
VENNGO INC.
|
Appellant
|
and
|
CONCIERGE CONNECTION INC. c.o.b. as PERKOPOLIS, MORGAN C. MARLOWE
and RICHARD THOMAS JOYNT
|
Respondents
|
Heard at Toronto, Ontario, on November 21, 2013.
Judgment delivered from the Bench at Toronto, Ontario, on November
21, 2013.
REASONS FOR JUDGMENT OF THE COURT BY: TRUDEL
J.A.
Docket:
A-125-13
Citation:
2013 FCA 272
CORAM:
EVANS
J.A.
TRUDEL
J.A.
WEBB
J.A.
BETWEEN:
|
VENNGO INC.
|
Appellant
|
and
|
CONCIERGE CONNECTION INC. c.o.b. as PERKOPOLIS, MORGAN C. MARLOWE
and RICHARD THOMAS JOYNT
|
Respondents
|
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the
Bench at Toronto, Ontario, on November 21, 2013).
TRUDEL J.A.
[1]
Venngo Inc. is appealing the Order of Justice de
Montigny wherein he dismissed Venngo’s motion for summary judgment on its
claims of infringement and depreciation of goodwill and ordered that the action
against the respondents proceed to trial in accordance with Rule 215(3)(b)
of the Federal Courts Rules, SOR/98-106 (2013 FC 300 [Reasons]).
[2]
In a comprehensive set of reasons, Justice de
Montigny explained that a Court shall grant a summary judgment if satisfied
that there is no genuine issue for trial and that the onus rests on the party
moving for summary judgment to demonstrate that all relevant issues can be
decided on the evidence before the Court (Reasons at paragraphs 16-17). He
found, however, that Venngo had failed to meet this burden and that there are
at least three genuine issues for trial in relation to the claim for
infringement, and at least one genuine issue with regard to the claim of depreciation
of goodwill.
[3]
The appellant contends that Justice de Montigny
erred in finding that there are genuine issues for trial and in declining to
rule on the challenge to the validity of the appellant’s marks. His decision
must stand, however, unless we are persuaded that the Judge committed palpable
and overriding errors on all factual issues (Housen v. Nikolaisen, 2002
SCC 33, [2002] 2 S.C.R. 235). We note that the appellant raises no legal error
on the part of the Judge. Appellate courts are reluctant to interfere in a
Judge’s exercise of discretion in refusing a motion for summary judgment.
[4]
After careful consideration of the record and of
counsel’s written and oral submissions, we are of the view that our Court’s
intervention is not warranted. Consequently, this appeal will be dismissed with
costs.
“Johanne
Trudel”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Docket:
A-125-13
APPEAL FROM AN ORDER OF THE HONOURABLE
MR. JUSTICE de MONTIGNY OF THE FEDERAL COURT, DATED MARCH 25, 2013 IN DOCKET
NO. T-467-11.
STYLE OF CAUSE:
|
VENNGO INC. v. CONCIERGE CONNECTION INC.
C.O.B. AS PERKOPOLIS, MORGAN C. MARLOWE AND RICHARD THOMAS JOYNT
|
PLACE OF
HEARING:
Toronto, Ontario
DATE OF HEARING:
November
21, 2013
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
TRUDEL
J.A.
WEBB
J.A.
DELIVERED
FROM THE BENCH BY:
TRUDEL
J.A.
APPEARANCES:
Andrew R. O. Jones
Kenneth D. McKay
|
For
The APPELLANT
|
David M. Reive
|
For
The Respondents
|
SOLICITORS OF RECORD:
SIM LOWMAN ASHTON & McKAY LLP
Barristers & Solicitors
Toronto, Ontario
|
For
The APPELLANT
|
MILLER THOMSON LLP
Toronto, Ontario
|
For
The Respondents
|