Date: 20010212
Docket: T-1761-89
Neutral reference: 2001 FCT 58
BETWEEN:
DYNAFLAIR CORPORATION CANADA INC.
Plaintiff-respondent
- and -
MOBILFLEX INC.
- and -
PRODUITS D'ARCHITECTURE DE QUÉBEC 1979 INC.
Defendants-applicants
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion asking the Court to decide the questions of delivery of profits and damages by reference pursuant to Rule 107 of the Federal Court Rules.
[2] On August 22, 1989 the plaintiff brought an action against the defendants in the Federal Court.
[3] In that action, the plaintiff alleged first that the defendants had infringed a patent to which it claimed that it held the rights, and second, that they had also marketed their products in a manner deliberately misleading when compared with its own: hence the allegations of passing off.
[4] On November 5, 1992 the defendants served their defence on the plaintiff.
[5] On December 8, 1994 the defendants filed a motion pursuant to Rule 480 of the old Rules of this Court, asking that the question of damages or profits be the subject of a reference pursuant to Rules 500 et seq. of the old Rules.
[6] On the same day, Pierre Denault J. dismissed the defendant's motion.
[7] On May 25, 2000 the plaintiff filed an amended action.
[8] In its amended statement of claim of May 25, 2000 the plaintiff decided to claim as damages delivery of the profits made by the defendants from 1987 to date.
[9] Since that time, the plaintiff has requested disclosure of all the defendants' financial documents covering 1987 to 1999.
[10] The order made by Denault J. dismissing the application for a reference reads as follows:
[TRANSLATION]
ORDER
Whereas, first, the plaintiff objected to the reference application and wished the proof and hearing at the trial to be both on the action for infringement and action for passing off as well as on the question of damages and division of profits, as in theory should be done (Brauwer Turf Equipment Ltd. v. A. and M. Sod Supply Ltd., [1977] 1 F.C. 51);
Whereas, secondly, the defendant's affidavit in support of the instant motion has shown no overriding economic or practical considerations that would justify this Court in departing from the general rule that all questions relating to litigation should be determined at the trial (Procter and Gamble Co. v. Kimberley Clark of Canada Inc., 21 C.P.R. (3d) 414, affirmed by the Federal Court of Appeal, 23 C.P.R. (3d) 287; Canamerican Auto Lease v. The Queen, [1985] 1 F.C. 638).
For these reasons, the reference application is dismissed: costs to follow.
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Signed:
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Pierre Denault
Judge
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[11] In his decision, Denault J. noted that the motion put before him at that time had shown no overriding economic or practical consideration that could have justified the Court in departing from the general rule, according to which all questions relating to litigation should be determined at the trial.
[12] Although six years have elapsed since that decision, there is nothing new about the motion except that the years have gone by and other financial documents have been added to those which existed in 1994.
[13] I have carefully examined the motion and its supporting documents: it would appear that the reasons put forward by the defendants are the same as those submitted in 1994 and there would not appear to be any new fact or circumstance, especially on reading the affidavit of Marc Fugère, that might tend to show that the Court could take a new approach to this reference application.
[14] It is possible that the defendants, by negligence or inadvertence, or even by accident, failed to raise certain points in 1994, but that is not a sufficient reason to depart from the res judicata rule. In this connection, the Supreme Court has already ruled on the point. This is a quotation from Lord Denning in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb, [1965] 2 All E.R. 4:
The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam . . . But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is, once an issue has been raised and distinctly determined between the parties, then, as a general rule, either party cannot be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances . . . and within one issue, there may be several points available which go to aid one party or the other in its efforts to secure determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he might find himself shut out from raising that point again, at any rate in any case where the self-same issue arises in the same or subsequent proceedings . . .
[1976] 2 S.C.R. 621">Town of Grandview v. Arthur Herbert Doering, [1976] 2 S.C.R. 621, at 637.
[15] In my opinion, the defendants have not succeeded in meeting the heavy burden of showing that the present circumstances could justify a different decision from that of Denault J. in 1994 on the same point.
[16] Consequently, the defendants' motion for an order of reference of the question of delivery of profits is dismissed with costs.
OTTAWA, ONTARIO
February 12, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-1761-89
STYLE OF CAUSE: DYNAFLAIR CORP. CANADA INC. v. MOBIFLEX INC. ET AL.
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: JANUARY 10, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: FEBRUARY 12, 2001
APPEARANCES:
FRANÇOIS ARSENAULT FOR THE PLAINTIFF
FRANÇOIS VALLIÈRES FOR THE DEFENDANT
SOLICITORS OF RECORD:
OGILVY, RENAULT FOR THE PLAINTIFF
MONTRÉAL, QUEBEC
LAVERY, DE BILLY FOR THE DEFENDANT
QUÉBEC, QUEBEC
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