Cordon Bleu International Ltée. c. Eleanor's Cuisine Francaise Inc., 2001 FCT 488

Date: 20010515

Docket: T-1983-88

                                                         Neutral reference: 2001 FCT 488

BETWEEN:

                  CORDON BLEU INTERNATIONAL LTÉE

                                                                                                      Plaintiff

                                                   - and -

                   ELEANOR'S CUISINE FRANÇAISE INC.

                                                    - and -

                              LE CORDON BLEU, S.A.R.L.

                                                    - and -

                             RENAUD COINTREAU & CIE

                                                                                                Defendants

                                  REASONS FOR ORDER

HUGESSEN J.

[1]    As the tape of the reasons given at the hearing was not available and the computerized notes I used were erased, the following is, at the request of counsel, a short summary of the reasons rendered.

[2]    The only part of the proposed amendments that was opposed concerned paras. 18.1 to 18.4 of the amended statement of claim, in which it was alleged that a third party, Mr. Pagé or Mr. Page, had operated a catering business in Vancouver under the name "Cordon Bleu" since 1987 and the plaintiff had bought Mr. Pagé's rights late in the year 2000.

[3]    According to counsel for the plaintiff the main purpose of the amendment was not to enable the plaintiff to claim the damages Mr. Pagé may have sustained or to exercise the latter's other remedies on account of the actions by the defendant, but rather to show that the defendant had itself sent Mr. Pagé a formal notice in the year 2000. In the plaintiff's view, this was a kind of admission by the defence of the connection between the businesses operated by the two parties in the case at bar.

[4]    I dismissed the motion for two reasons:

(1)       I did not see the relevance of the new allegations to the issue as joined: each of the parties maintained that it had the right to use the mark "Cordon Bleu" and the fact that one or both acted against a third party which had allegedly used the same mark could not have any bearing on the outcome of the case;

(2)       the action is at a very advanced stage and there have already been several amendments by either side and several days of examinations for discovery: if the amendment were allowed it would necessitate still further amendments to the written pleadings and further examinations for discovery both of the plaintiff and of the assignor Mr. Pagé. After 13 years, I feel that the delay involved would cause unacceptable harm.

[5]                  That is why I dismissed the motion with costs.

                                                                                                           Judge                         

Ottawa, Ontario

May 15, 2001

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE No.: T-1983-88

STYLE OF CAUSE: CORDON BLEU INTERNATIONAL LTÉE. v. ELEANOR'S CUISINE FRANCAISE INC. ET AL.

PLACE OF HEARING: May 14, 2001

REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE HUGESSEN

DATED: May 15, 2001

APPEARANCES:

Mr. Jacques Léger and Mr. Alain Dussault                                   FOR PLAINTIFF

Mr. François Guay and Ms. Ekaterina Tsimberis                         FOR DEFENDANT

SOLICITORS OF RECORD:

Leger Robic Richard                                                                       FOR PLAINTIFF

Montréal, Quebec

Smart & Biggar                                                                              FOR DEFENDANT

Montréal, Quebec