Date: 20020227
Docket: A-777-00
Neutral citation: 2002 FCA 75
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
HAVANA HOUSE CIGAR & TOBACCO MERCHANTS LTD.,
EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Plaintiffs
(Respondents in Appeal)
- and -
JANE DOE and JOHN DOE and
OTHER PERSONS, NAMES UNKNOWN,
WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, DISTRIBUTE
ADVERTISE, OR DEAL IN UNAUTHORIZED OR COUNTERFEIT
HAVANA HOUSE MERCHANDISE, and 1116270 ONTARIO INC.
t/a KOZY KORNER'S, ANTHONY NIGRO, and
714660 ONTARIO INC. t/a COPA-HABANA SMOKE & CIGAR SHOP
Defendants
(Appellants in Appeal)
-and-
1116270 ONTARIO INC. t/a KOZY KORNER'S,
ANTHONY NIGRO and 714660 ONTARIO INC. t/a
COPA-HABANA SMOKE & CIGAR SHOP
Plaintiffs by Counterclaim
(Appellants in Appeal)
-and-
HAVANA HOUSE CIGAR & TABACCO MERCHANTS LTD.,
EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Defendants by Counterclaim
(Respondents in Appeal)
Heard at Toronto, Ontario, on February 26, 2002
Judgment delivered from the Bench at Toronto, Ontario on February 26, 2002
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20020227
Docket: A-777-00
Neutral citation: 2002 FCA 75
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS. J.A.
BETWEEN:
HAVANA HOUSE CIGAR & TOBACCO MERCHANTS LTD.,
EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Plaintiffs
(Respondents in Appeal)
- and -
JANE DOE and JOHN DOE and
OTHER PERSONS, NAMES UNKNOWN,
WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, DISTRIBUTE
ADVERTISE, OR DEAL IN UNAUTHORIZED OR COUNTERFEIT
HAVANA HOUSE MERCHANDISE, and 1116270 ONTARIO INC.
t/a KOZY KORNER'S, ANTHONY NIGRO, and
714660 ONTARIO INC. t/a COPA-HABANA SMOKE & CIGAR SHOP
Defendants
(Appellants in Appeal)
-and-
1116270 ONTARIO INC. t/a KOZY KORNER'S,
Page: 2
ANTHONY NIGRO and 714660 ONTARIO INC. t/a
COPA-HABANA SMOKE & CIGAR SHOP
Plaintiffs by Counterclaim
(Appellants in Appeal)
-and-
HAVANA HOUSE CIGAR & TABACCO MERCHANTS LTD.,
EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Defendants by Counterclaim
(Respondents in Appeal)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, February 26, 2002)
SEXTON J.A.
[1] The issue before Gibson J. was confined to the issue of the scale of costs to be awarded to the Appellants as a result of the Respondents discontinuing their action. The issue was argued in two ways.
[2] Firstly, it was argued that as a result of the discontinuance, the Appellants were entitled to costs on a solicitor-client scale.
Page: 3
[3] Secondly, it was argued that the Appellant was entitled to solicitor-client costs as a result of being entitled to enforce the Respondents' undertaking as to damages. The Church of Jesus Christ of Latter Day Saints v. King 41 O.R. (3rd) 389 (Ont. C.A.) was relied upon in support of this proposition.
[4] Before us it was argued that there should be a reference for an assessment of damages which would be confined to the issue of costs. The original notice of motion in the Trial Division did not seek this relief, nor was there any request for a reference for an assessment of damages before Gibson J. Consequently, it would not be appropriate for this Court to order a reference now.
[5] The Respondent argued before us that the undertaking as to damages was not triggered by the Notice of Discontinuance. We disagree. There is ample authority to the contrary.
[6] However, we are of the opinion that Gibson J. in declining to order solicitor-client costs, considered the appropriate factors, whether using the test for obtaining solicitor-client costs generally, or using the test set forth by the Ontario Court of Appeal in the King case. It is therefore not necessary for us to decide whether solicitor-client costs can be ordered as damages.
Page: 4
[7] Since Gibson J. has given sufficient weight to all of the relevant considerations there is no justification for interfering with the exercise of his discretion.
[8] The appeal will be dismissed with costs on a party and party basis.
"J. E. Sexton"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-777-00
STYLE OF CAUSE: HAVANA HOUSE CIGAR & TOBACCO MERCHANTS LTD., EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Plaintiffs
(Respondents in Appeal)
- and -
JANE DOE and JOHN DOE and OTHER PERSONS, NAMES UNKNOWN, WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, DISTRIBUTE
ADVERTISE, OR DEAL IN UNAUTHORIZED OR COUNTERFEIT HAVANA HOUSE MERCHANDISE, and 1116270 ONTARIO INC. t/a KOZY KORNER'S, ANTHONY NIGRO, and 714660 ONTARIO INC. t/a COPA-HABANA SMOKE & CIGAR SHOP
Defendants
(Appellants in Appeal)
-and-
1116270 ONTARIO INC. t/a KOZY KORNER'S,
ANTHONY NIGRO and 714660 ONTARIO INC. t/a
COPA-HABANA SMOKE & CIGAR SHOP
Plaintiffs by Counterclaim
(Appellants in Appeal)
-and-
HAVANA HOUSE CIGAR & TABACCO MERCHANTS LTD., EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Defendants by Counterclaim
(Respondents in Appeal)
DATE OF HEARING: TUESDAY, FEBRUARY 26, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: SEXTON J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON TUESDAY, FEBRUARY 26, 2002.
DATED: WEDNESDAY, FEBRUARY 27, 2002
APPEARANCES BY: Ms. Sally Bryant, and
Mr. John Brown
For the Appellants
Ms. Colleen Spring-Zimmerman, and
Ms. May Cheng
For the Respondents
SOLICITORS OF RECORD: McCarthy Tétrault
Barristers & Solicitors
Suite 4700
Toronto Dominion Bank Tower
Toronto Dominion Centre
Toronto, Ontario
M5K 1E6
For the Appellants
Fasken Martineau Dumoulin LLP
Barristers & Solicitors
Box 20, Suite 2400
Toronto Dominion Bank Tower
Toronto Dominion Centre
Toronto, Ontario
M5K 1N6
For the Respondents
FEDERAL COURT OF APPEAL
Date: 20020227
Docket: A-777-00
BETWEEN:
HAVANA HOUSE CIGAR & TOBACCO MERCHANTS LTD., EMPRESS CUBANA DEL TABACO trading as CUBATABACO and HABANOS S.A.
Plaintiffs
(Respondents in Appeal)
- and -
JANE DOE and JOHN DOE and OTHER PERSONS, NAMES UNKNOWN, WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, DISTRIBUTE ADVERTISE, OR DEAL IN UNAUTHORIZED OR COUNTERFEIT HAVANA HOUSE MERCHANDISE, and 1116270 ONTARIO INC. t/a KOZY KORNER'S, ANTHONY NIGRO, and 714660 ONTARIO INC. t/a COPA-HABANA SMOKE & CIGAR SHOP
Defendants
(Appellants in Appeal)
-and-
1116270 ONTARIO INC. t/a KOZY KORNER'S, ANTHONY NIGRO and 714660 ONTARIO INC. t/a COPA-HABANA SMOKE & CIGAR SHOP
Plaintiffs by Counterclaim
(Appellants in Appeal)
-and-
HAVANA HOUSE CIGAR & TABACCO MERCHANTS LTD., EMPRESS CUBANA DEL TABACO trading as CUBATABACO and HABANOS S.A.
Defendants by Counterclaim
(Respondents in Appeal)
REASONS FOR JUDGMENT
OF THE COURT
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-777-00
STYLE OF CAUSE: HAVANA HOUSE CIGAR & TOBACCO MERCHANTS LTD., EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Plaintiffs
(Respondents in Appeal)
- and -
JANE DOE and JOHN DOE and OTHER PERSONS, NAMES UNKNOWN, WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, DISTRIBUTE
ADVERTISE, OR DEAL IN UNAUTHORIZED OR COUNTERFEIT HAVANA HOUSE MERCHANDISE, and 1116270 ONTARIO INC. t/a KOZY KORNER'S, ANTHONY NIGRO, and 714660 ONTARIO INC. t/a COPA-HABANA SMOKE & CIGAR SHOP
Defendants
(Appellants in Appeal)
-and-
1116270 ONTARIO INC. t/a KOZY KORNER'S,
ANTHONY NIGRO and 714660 ONTARIO INC. t/a
COPA-HABANA SMOKE & CIGAR SHOP
Plaintiffs by Counterclaim
(Appellants in Appeal)
-and-
HAVANA HOUSE CIGAR & TABACCO MERCHANTS LTD., EMPRESS CUBANA DEL TABACO trading as
CUBATABACO and HABANOS S.A.
Defendants by Counterclaim
(Respondents in Appeal)
DATE OF HEARING: TUESDAY, FEBRUARY 26, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: SEXTON J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON TUESDAY, FEBRUARY 26, 2002.
APPEARANCES BY: Ms. Sally Bryant, and
Mr. John Brown
For the Appellants
Ms. Colleen Spring-Zimmerman, and
Ms. May Cheng
For the Respondents
SOLICITORS OF RECORD: McCarthy Tétrault
Barristers & Solicitors
Suite 4700
Toronto Dominion Bank Tower
Toronto Dominion Centre
Toronto, Ontario
M5K 1E6
For the Appellants
Fasken Martineau Dumoulin LLP
Barristers & Solicitors
Box 20, Suite 2400
Toronto Dominion Bank Tower
Toronto Dominion Centre
Toronto, Ontario
M5K 1N6
For the Respondents
FEDERAL COURT OF APPEAL
Date: 20020227
Docket: A-777-00
BETWEEN:
HAVANA HOUSE CIGAR & TOBACCO MERCHANTS LTD., EMPRESS CUBANA DEL TABACO trading as CUBATABACO and HABANOS S.A.
Plaintiffs
(Respondents in Appeal)
- and -
JANE DOE and JOHN DOE and OTHER PERSONS, NAMES UNKNOWN, WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, DISTRIBUTE ADVERTISE, OR DEAL IN UNAUTHORIZED OR COUNTERFEIT HAVANA HOUSE MERCHANDISE, and 1116270 ONTARIO INC. t/a KOZY KORNER'S, ANTHONY NIGRO, and 714660 ONTARIO INC. t/a COPA-HABANA SMOKE & CIGAR SHOP
Defendants
(Appellants in Appeal)
-and-
1116270 ONTARIO INC. t/a KOZY KORNER'S, ANTHONY NIGRO and 714660 ONTARIO INC. t/a COPA-HABANA SMOKE & CIGAR SHOP
Plaintiffs by Counterclaim
(Appellants in Appeal)
-and-
HAVANA HOUSE CIGAR & TABACCO MERCHANTS LTD., EMPRESS CUBANA DEL TABACO trading as CUBATABACO and HABANOS S.A.
Defendants by Counterclaim
(Respondents in Appeal)
REASONS FOR JUDGMENT
OF THE COURT
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