Date: 19980625
Docket: A-995-96
CORAM: DENAULT J.
DÉCARY J.
LÉTOURNEAU J.
BETWEEN:
132831 CANADA INC. carrying on business as
Monsieur Félix & Mr. Norton Cookies Inc.
Appellant
(Defendant)
AND
THE COOKIE FLORIST CANADA LTD.
Respondent
(Plaintiff)
Heard at Montreal, Quebec, Thursday 25th day of June 1998.
Judgment delivered at Montreal, Quebec, Thursday 25th day of June 1998.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
Date: 19980625
Docket: A-995-96
CORAM: DENAULT J.
DÉCARY J.
LÉTOURNEAU J.
BETWEEN:
132831 CANADA INC. carrying on business as
Monsieur Félix & Mr. Norton Cookies Inc.
Appellant
(Defendant)
AND
THE COOKIE FLORIST CANADA LTD.
Respondent
(Plaintiff)
REASONS FOR JUDGMENT
(Rendered from the Bench at Montreal on
Thursday, June 25th, 1998)
LÉTOURNEAU J.A.
[1] We are all of the view that Noël J. properly exercised his discretion when he dismissed the Defendant's motion for summary judgment under Rule 432.1 of the Federal Court Rules and, therefore, that the Defendant's appeal from that decision cannot succeed.
[2] The Appellant argued before us that the facts relating to the time of the publication and the registration of the Plaintiff's industrial design are not in dispute and, consequently, that there is only a question of law to be decided which would be decisive of the Plaintiff's claim. We are not convinced that the issue raised by the Defendant relating to the invalidity of the registration of the Plaintiff's industrial design is a pure question of law which lends itself to summary judgment in the better interest of the administration of justice. The issue calls for a difficult interpretation of the scope of amendments to the Industrial Design Act (R.S.C., 1985, ch. I-9, as amended by S.C. 1993, ch. 15 and 44) and a transitional provision (s. 30, ch. 15) as well as its applicability in the circumstances of this case.
[3] We are not satisfied that all the evidence to find the facts necessary to decide this mixed question of fact and law is before the judge who would have to render summary judgment.
[4] For these reasons, the appeal will be dismissed with costs.
Gilles Létourneau
J.A.
MONTREAL, QUÉBEC
June 25, 1998
FEDERAL COURT OF APPEAL
Date: 19980625
Docket: A-348-95
BETWEEN:
132831 CANADA INC. carrying on business as
Monsieur Félix & Mr. Norton Cookies Inc.
Appellant
(Defendant)
AND
THE COOKIE FLORIST CANADA LTD.
Respondent
(Plaintiff)
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NUMBER: A-995-96
BETWEEN: 132831 CANADA INC. carrying on business
as Monsieur Félix & Mr. Norton Cookies Inc.
Appellant
(Defendant)
AND
THE COOKIE FLORIST CANADA LTD.
Respondent
(Plaintiff)
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 25, 1998
REASONS FOR JUDGMENT OF THE COURT (DENAULT F.C.J., DÉCARY, J.A., AND
LÉTOURNEAU J.A.)
RENDERED FROM THE BENCH BY: LÉTOURNEAU J.A.
DATED: June 25, 1998
APPEARANCES:
Me Ross Robins for the Appellant
| Me Roger Leclaire for the Respondent |
Page: 2
SOLICITORS OF RECORD:
Bergman Robins
| Montreal, Quebec for the Appellant |
George Thomson
Deputy Attorney General for the Respondent
of Canada
Ottawa, Ontario
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