Date: 20020909
Docket: A-309-01
Neutral citation: 2002 FCA 316
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
CORDON BLEU INTERNATIONAL LTÉE
Appellant
and
ELEANOR'S CUISINE FRANÇAISE INC.
and
LE CORDON BLEU, S.A.R.L.
and
RENAUD COINTREAU & CIE
and
LE CORDON BLEU B.V.
Respondents
Hearing held at Montréal, Quebec, on September 9, 2002.
Judgment from the bench at Montréal, Quebec, on September 9, 2002.
REASONS FOR JUDGMENT OF THE COURT: DESJARDINS J.A.
Date: 20020909
Docket: A-309-01
Neutral citation: 2002 FCA 316
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
CORDON BLEU INTERNATIONAL LTÉE
Appellant
and
ELEANOR'S CUISINE FRANÇAISE INC.
and
LE CORDON BLEU, S.A.R.L.
and
RENAUD COINTREAU & CIE
and
LE CORDON BLEU B.V.
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec,
on September 9, 2002.)
DESJARDINS J.A.
[1] We consider that there are grounds for intervention by this Court in the case at bar.
[2] In his reasons, the trial judge stated that the principal purpose of the amendment was not to enable the appellant to claim the damages which its predecessor in title could have claimed, or to exercise the latter's other remedies on account of the actions by the respondents, but to show that during the year 2000 the respondents had sent the predecessor in title a notification and that this act by the respondents represented a kind of admission by them that the businesses operated by the two parties at issue were related. The trial judge went on to dismiss paras. 18.1 to 18.4 of the proposed amendment on two grounds: irrelevance and the unwarranted delay that would result from amending the pleadings.
[3] The appellant submitted that the very purpose of the amendment requested was to enable it to raise rights which it wished to assert against the respondents, namely the rights, titles and interests acquired since 1987 by its predecessor in title, Cordon Bleu Catering of Vancouver, in connection with catering service activities. The appellant further submitted that the amendment was in support of its restaurant services, on which it was relying in the use of its mark "CORDON BLEU". It argued that the respondent Le Cordon Bleu B.V. had since May 11, 2000, been engaged in restaurant and catering services and that the trial judge had approved by consent the addition of paras. 18.5 and 22 of the proposed amendment, which made it possible to raise this point. The excision of the proposed amendment thus resulted in an inconsistency. If the amendment requested was not allowed, the appellant would have no choice but to bring a separate action, which would tend to multiply proceedings as well as creating a risk of inconsistency between the decisions.
[4] We feel that as the trial judge accepted the amendments dealt with in paras. 18.5 and 22, he could not logically conclude that paras. 18.1 to 18.4 of the case, as worded, were irrelevant. It is true that the action has gone on for 13 years, the pleadings have given rise to many amendments on either side and there have been several days of examination for discovery. However, the harm sustained by the respondents, if any, could be compensated for by costs (The Queen v. Canderel Ltée, [1994] 1 F.C. 3).
[5] The appeal will be allowed, the trial judge's decision quashed and the appellant authorized to add paras. 18.1 to 18.4 to its re-amended statement of claim.
[6] In the circumstances, there is no basis for awarding costs.
| |
"Alice Desjardins"
Judge
|
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
| |
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20020909
Docket: A-309-01
Between:
CORDON BLEU INTERNATIONAL LTÉE
Appellant
and
ELEANOR'S CUISINE FRANÇAISE INC.
and
LE CORDON BLEU, S.A.R.L.
and
RENAUD COINTREAU & CIE
and
LE CORDON BLEU B.V.
Respondents
REASONS FOR JUDGMENT OF THE COURT
|
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
FILE: A-309-01
STYLE OF CAUSE: CORDON BLEU INTERNATIONAL LTÉE
and
ELEANOR'S CUISINE FRANÇAISE INC.
and
LE CORDON BLEU, S.A.R.L.
and
RENAUD COINTREAU & CIE
and
LE CORDON BLEU B.V.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 9, 2002
REASONS FOR JUDGMENT OF THE COURT: DESJARDINS J.A.
CONCURRED IN BY: NOËL J.A.
NADON J.A.
DATE OF REASONS: September 9, 2002
APPEARANCES:
Jacques A. Léger, Q.C. FOR THE APPELLANT
François Guay FOR THE RESPONDENTS
Ekaterina Tsimberis
SOLICITORS OF RECORD:
Léger, Robic, Richard FOR THE APPELLANT
Montréal, Quebec
Smart & Biggar FOR THE RESPONDENTS
Montréal, Quebec
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