Date: 19991117 Docket: T-716-97
BETWEEN:
HOOTERS, INC., and HOOTERS OF AMERICA, INC.
Plaintiffs
- and -
HOOTERS SPORTS BAR INC. c.o.b. as "HOOTERS SPORTS BAR," LLOYD POIRIER, JANE ANNE POIRIER, and ROBERT O'BRIEN
Defendants
REASONS FOR ORDER
SHARLOW J.
[1] Hooters, Inc. and Hooters of America, Inc. commenced this action by filing a statement of claim on April 16, 1997. The defendants are Hooters Sports Bar Inc. (carrying on business as "Hooters Sports Bar"), Lloyd Poirier, Jane Anne Poirier and Robert O'Brien.
[2] A statement of defence was filed on May 16, 1997 on behalf of all of the defendants except Robert O'Brien. I will refer to those defendants collectively as "Hooters Sports Bar".
Page: 2 It appears that the defendant Robert O'Brien has never been served with the statement of
claim.
[3] On August 24, 1998, counsel for Hooters Sports Bar wrote to the judicial administrator asking for a special sitting for a motion for summary judgment dismissing the Plaintiffs' claims. The Associate Chief Justice directed that the motion be set down for January 22, 1999 at 9:30 a.m. in Toronto. The motion was adjourned by consent. Subsequently it was set down for hearing on June 3, 1999.
[4] Before me on that date were the motion by Hooters Sports Bar for summary judgment, and in the alternative for an order for security for costs, and a motion for solicitor and client costs. As well, there was a cross motion by Hooters for an order for particulars.
[5] At the hearing, counsel for the Plaintiffs and Hooters Sports Bar indicated that a settlement was under active consideration. They said that their clients had agreed to an order that would include an injunction against Hooters Sports Bar and related orders prohibiting the use of the Hooters name and trade-marks. They also agreed to an order requiring Hooters Sports Bar to provide information as to the whereabouts of the defendant Robert O'Brien.
[6] Counsel asked for endorsement of the consent order, and for the remainder of the motions to be adjourned to permit the settlement to be concluded. They undertook to provide,
Page: 3 very shortly, a form of order that would dispose of the action by consent. I granted the order as requested and adjourned the motions.
[7] Having heard nothing by September 14, 1999, I requested a conference call. Counsel for the Plaintiffs asked instead to be allowed until September 27, 1999 to finalize matters, failing which the adjourned matters would be brought forward. Nothing happened.
[8] On October 28, 1999, 1 directed the registry to tell both counsel to make written submissions, on or before November 12, 1999, as to why I should not dispose of the motions summarily.
[9] I have heard nothing from counsel for Hooters Sports Bar. Counsel for the Plaintiffs has indicated that he has attempted to take appropriate steps to finalize this matter but counsel for Hooters Sports Bar has not responded. No explanation has been offered for the apparent lack of cooperation by counsel for Hooters Sports Bar.
[10] In these circumstances, it is appropriate to dismiss, with costs, the motion by the defendants Hooters Sports Bar Inc., Lloyd Poirier and Jane Anne Poirier for summary dismissal of the Plaintiffs' claims as well as their motion for security for costs, and their motion for solicitor and client costs.
Page: 4 [11] I will make no further order with respect to the Plaintiffs' cross-motion for particulars. It will remain adjourned. Counsel for the Plaintiffs may set that motion down on a regular motions day or seek a new hearing date, if argument on the motion is expected to be lengthy. That motion can be heard by any Judge or Prothonotary.
[12] The onus is now on the Plaintiffs to move this matter forward. That includes taking whatever steps they deem appropriate with respect to the enforcement of the June 3, 1999 order. I note also that this matter is well overdue for the issuance of a notice of status review under Rule 380.
Karen R. Sharlow
Judge
Ottawa, OntarioNovember 17, 1999
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-716-97
STYLE OF CAUSE: HOOTERS INC. ET AL. v. HOOTERS SPORTS BAR INC. ET AL.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 3, 1999
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE SHARLOW DATED: NOVEMBER 17,1999
APPEARANCES
MR. GORDON S. CLARKE AND
MR. ROBERTO CUCCI FOR PLAINTIFFS
MR. PETER HARVEY AND
MR. OWEN THOMPSON FOR DEFENDANTS
SOLICITORS OF RECORD:
GORDON S. CLARKE
CALEDON EAST, ONTARIO FOR PLAINTIFFS
HARVEY COWTAN
TORONTO, ONTARIO FOR DEFENDANTS
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