Date: 19980908
Docket: T-1604-95
BETWEEN:
ILLVA SARONNO S.p.A.
Plaintiff
- and -
PRIVILEGIATA FABBRICA MARASCHINO "EXCELSIOR"
GIROLAMO LUXARDO S.p.A.,
GIROLAMO LUXARDO MARASCHINO CANADA LTD.,
SAVERIO SCHIRALLI AGENCIES LIMITED and
VANRICK CORPORATION LIMITED
Defendants
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] The motion before me sought an Order that matters relating to the quantum of damages and profits including issues of apportionment be at the trial the subject of a reference. While it might appear obvious that discovery, the most time-consuming and labour intensive aspect of the usual case for the litigants, might possibly thereby be shortened, that the trial would inevitably be shortened and that the total time for hearing and discovery would be shortened if only one of damages or profits had to be investigated or argued it is, in my view, not open to me to so conclude without some evidence. The only evidence before me was as to the expense and labour involved in investigating damages. This presumably would be the same, perhaps greater, if the case were split and damages only assessed after the defendant lost. What is required is evidence of some inevitable saving such as that of deferring discovery until after an election has been made as to damages or profits which now does not necessarily have to be done until after trial.
[2] In VISX Inc. v. Nidek Co. [1998] F.C.J. No. 811 Court File No. T-195-94, Hugessen, J. wrote in reasons dated June 11, 1998 that the governing principles were well-known and established in Depuy (Canada) Ltd., et al v. Joint Medical Products Corp., et al (1996), 67 C.P.R. (3d) 145 (F.C.A.). In my view that imports the jurisprudence under former Rule 480 for determining issues under the new Rule 107. That in my view makes it necessary for litigants seeking separate determination of issues to show there will necessarily be some saving of expense and time if discovery and trial of damages or profits is postponed until the matter of liability is settled. The fact that discovery and trial time would be reduced if the defendant were successful at trial, is not sufficient, and the defendant will therefore be left to obtain what compensation it can under Rule 400 (3)(i).
ORDER
The motion for an Order postponing issues to a Reference is dismissed.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
September 8, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1604-95
| STYLE OF CAUSE: ILLVA SARONNO S.p.A. |
- and -
| PRIVILEGIATA FABBRICA MARASCHINO "EXCELSIOR", et al |
DATE OF HEARING: TUESDAY, SEPTEMBER 8, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER AND ORDER BY: GILES, A.S.P.
DATED: TUESDAY, SEPTEMBER 8, 1998
APPEARANCES: Mr. Steven Mason
For the Plaintiff
Mr. Newton Wong
For the Defendant
SOLICITORS OF RECORD: McCarthy Tétrault
Barristers & Solicitors
Suite 4700
Toronto Dominion Bank Tower
Toronto Dominion Centre
Toronto, Ontario
M5K 1E6
For the Plaintiff
Newton Wong & Associates
Barristers & Solicitors
20 Queen Street West
Suite 3018, Box 18
Cadillac Fairview Tower
Toronto, Ontario
M5H 3R3
For the Defendant
FEDERAL COURT OF CANADA
Date: 19980908
Docket: T-1604-95
Between:
| ILLVA SARONNO S.p.A. |
Plaintiff
- and -
| PRIVILEGIATA FABBRICA MARASCHINO "EXCELSIOR" |
GIROLAMO LUXARDO S.p.A.,
GIROLAMO LUXARDO MARASCHINO CANADA LTD.,
SAVERIO SCHIRALLI AGENCIES LIMITED and
VANRICK CORPORATION LIMITED
Defendants
REASONS FOR ORDER AND ORDER