Walt Disney Co. v. Doe, 2002 FCT 375

Date: 20020404

Docket: T-1058-98

Neutral Citation: 2002 FCT 375

Ottawa, Ontario, this 4^th day of April 2002

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

THE WALT DISNEY COMPANY (CANADA) LIMITED and

DISNEY ENTERPRISES, INC.

Plaintiffs

- 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

DISNEY MERCHANDISE, AND THOSE PERSONS

LISTED IN SCHEDULE "A" TO THE STATEMENT OF CLAIM

Defendants

REASONS FOR ORDER AND ORDER

[1]                 The court has before it an application for default judgment against Minda Gill. The application seeks an award of damages of $6,000 plus a permanent injunction and costs. A review of the material filed on the application discloses that on November 30, 1998 Ms. Gill was served with a copy of the Statement of Claim, the Anton Piller order made in this file and a Notice of Motion returnable December 14, 1998. Service occurred at or following a meeting at plaintiff's counsel's office to discuss the execution of the Anton Piller order upon the other occupant of Ms. Gill's home, Ms. Gloria Sarmiento. Ms. Gill was advised that since she was apparently in business with Ms. Sarmiento, counsel would request that she be added as a defendant with Ms. Sarmiento "so that there would only be one set of costs involving the seizures which took place".

[2]                 On November 20, 1998, this plaintiff's Anton Piller Order was served on Ms. Sarmiento. That execution took place in Ms Sarmiento's residence. The Solicitor's report indicates that the persons executing the order knocked on the door and "advised that we were there with respect to T-shirts and were invited into the house by the Defendant [Sarmiento]." The person serving the order noted the presence of a number of T-shirts in the living room and dining room. The Defendant [Sarmiento] offered to sell counterfeit T-shirts.

[3]                 The Solicitor's Report goes on to report that the Defendant Sarmiento was then served with the Anton Piller order, Statement of Claim and Motion Record seeking review of the execution of the Anton Piller Order returnable December 14, 2002. A search of a shed in the backyard disclosed a hot stamp press, which Sarmiento indicated belonged to an individual living in the house named Minda Gill.

[4]                 On the strength of this evidence, an order was made on December 14, 1998 adding Ms. Gill as a defendant to the Statement of Claim, and enjoining her from

infringing the plaintiff's intellectual properties. On June 7, 2001 the plaintiff obtained judgment against Ms. Sarmiento in default. The terms of the order include a permanent injunction restraining Ms. Sarmiento from infringing the plaintiff's intellectual properties and an order of costs in the amount of $250. No order was made as to damages.

[5]                 In the circumstances, it would no doubt come as a surprise to Ms. Gill to be served with a default judgment in the amount of $6,000.

[6]                 Having regard to the fact that a review order was made against Ms. Gill, I make no comment on the fact that the order was not executed but merely served in plaintiff's counsel's offices. However, I do say that it is inappropriate to seek damages of $6,000 against this defendant when the only evidence of counterfeiting on her part an exculpatory statement by another defendant. There may be better evidence available but it has not been provided. Furthermore, in light of the assurances as to "one set of costs" it seems unfair to seek damages against this defendant when more were obtained against her co-defendant.

ORDER

1. The application for default judgment is dismissed.

           2. The time for obtaining judgement as set out in the Case Management Order having passed, the claim against this defendant is dismissed and the interlocutory injunction is hereby dissolved.

        "J.D. Denis Pelletier"         

   Judge