Date: 19971104
Docket: A-536-96
CORAM: STONE, J.A.
LINDEN, J.A.
GRAY, D.J.
BETWEEN:
1013579 ONTARIO INC.
Appellant
-and-
BEDESSEE IMPORTS LTD.
Respondent
Heard at Toronto, Ontario, Monday, November 3, 1997
Delivered from the Bench at Toronto, Ontario, Monday, November 3, 1997
REASONS FOR JUDGMENT OF THE COURT BY: STONE, J.A.
Date: 19971104
Docket: A-536-96
CORAM: STONE, J.A.
LINDEN, J.A.
GRAY, D.J.
BETWEEN:
1013579 ONTARIO INC.
Appellant
-and-
BEDESSEE IMPORTS LTD.
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Monday, November 3, 1997)
STONE, J.A.:
[1] This is an appeal from an order of the Associate Chief Justice made pursuant to Rule 432.3(1), granting summary judgment in an action for infringement of four named trade-marks
and for passing-off based upon the alleged violation of paragraph 7(b)1 of the Trade-marks Act, R.S.C. 1985, c. T-13.
[2] Rule 432.3(1) reads:
| 432.3(1) Where a judge is satisfied that there is no genuine issue for trial with respect to a claim or defence, the judge shall grant summary judgment accordingly. |
|
[3] The appellant contends that the learned Motions Judge erred in granting summary judgment because, in its submission, the respondent had failed to discharge the burden of demonstrating there was no "genuine issue for trial", and further, that he erred in failing to explicitly determine that this was so with regard to the claims in passing-off.
[4] In our view, notwithstanding that his reasons lack somewhat in precision and detail, the Motions Judge arrived at the correct conclusion that, on the evidence before him, there was no "genuine issue" that the respondent infringed the appellant's trade-marks. On the other hand, despite acknowledging at the outset of his reasons and in the recital to his order that the motion was both for dismissal of the actions in respect of infringement and for "passing-off", the Motions Judge did not explicitly address the request that the claims in passing-off be summarily dismissed. They represented, of course, a discrete cause of action which, in our view, needed to be separately addressed by the Motions Judge.
[5] In the result, the appeal will be allowed in part and the matter referred back to the Motions Judge for disposition of the respondent's motion that there be summary judgment dismissing the appellant's claims in passing-off. Success being divided, there will be no order as to costs.
"A.J. Stone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: A-536-96
| STYLE OF CAUSE: 1013579 ONTARIO INC. |
- and -
DATE OF HEARING: NOVEMBER 3, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: STONE, J.A.
Delivered from the Bench at Toronto, Ontario
on Monday, November 3, 1997
APPEARANCES: Mr. Edmund Clarke
For the Appellant
Mr. A-Kelly Gill
Ms. Tracey Pullen
For the Respondent
SOLICITORS OF RECORD: Fox, Clarke, Shulakewych
Barristers & Solicitors
Canada Trust Tower, BCE Place
2601-161 Bay Street, Box 630
Toronto, Ontario
M5J 2S1
For the Appellant
Gowling, Strathy, & Henderson
Barristers & Solicitors
Suite 4900 Commerce Court West
P.O. Box 1045 Station C
Toronto, Ontario
M5L 1J3
For the Respondent
| |
REASONS FOR JUDGMENT OF THE COURT |
__________________
1 Paragraph 7(b) reads:
7. No person shall ...
(b) direct public attention to his wares, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his wares, services or business and the wares, services or business of another;
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