Date: 20000111
Docket: T-394-98
MONTRÉAL, QUEBEC, THE 11TH DAY OF JANUARY, 2000
PRESENT: RICHARD MORNEAU, PROTHONOTARY
Between:
A LASSONDE INC.
Plaintiff
AND
ISLAND OASIS CANADA INC. and
ISLAND OASIS FROZEN COCKTAIL COMPANY INC.
Defendants
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the plaintiff for a determination of certain objections raised by the defendants following the examination of two affiants for the defendants (Mr. Herbert and Ms. Megit) who had submitted affidavits in opposition to an application for an interlocutory injunction by the plaintiff, which is to be heard January 31 and February 1, 2000.
[2] The plaintiff is also seeking authorization to file a supplementary affidavit in the Court record, that of Jean Gattuso dated December 16, 1999.
[3] Finally, the parties have agreed that we will deal with certain objections by the plaintiff in the examinations of Mr. Gattuso in relation to other affidavits submitted in support of the injunction application.
[4] I intend to address these points in that order.
Objections re Herbert
[5] Question Q4 need not be answered since it covers an important legal aspect. The same applies to questions Q5 and Q6, since they fall under solicitor-client privilege.
[6] In regard to undertaking U1, the plaintiff has already received its reply subject to the undertaking by the defendants' solicitor during the hearing. The same applies to undertaking U2, in view of the letter of January 6, 2000 that was sent by the defendants. Undertaking U4 has also been answered.
Objections re Megit
[7] In regard to question Q4 under this examination, I think, when all is said and done, that the table supplied by the defendants (see page 159 of the defendants' motion record) is sufficient in itself and need not be completed. Questions Q5, Q7 and Q8, as worded, cover the whole of Canada and accordingly are overbroad since the injunction that is sought would be limited to Quebec alone. Furthermore, the plaintiff did not in any way plead the apprehended insolvency of the defendants. Consequently, these questions need not be answered.
Supplementary affidavit of Mr. Gattuso
[8] I think no substantial harm will result to the defendants and that it is in the interest of the administration of justice with a view to assisting the Court on the merits if the Court authorizes the plaintiff to serve and file in the Court record within two days of this order Mr. Gattuso's supplementary affidavit dated December 16, 1999, but only paragraphs 1 to 25 and paragraph 37. All the other paragraphs of this affidavit as submitted at the hearing of the motion shall be struck out.
[9] Essentially, paragraphs 1 to 7 of this affidavit are introductory, while paragraphs 8 to 23 and 37 are in the nature of answers to some undertakings made in the past.
[10] In regard to paragraph 24, the fact that it contains hearsay is not fatal in itself in the context of the pending motion, and the Court hearing on the merits will be able to give this paragraph the weight it deserves. The new and potentially valid information it contains could of course have been supplied to the defendants prior to December 17, 1999. However, I do not think this delay should necessarily be held against the plaintiff in the circumstances, since at the time some settlement negotiations were under way and the defendants had the holiday season in which to examine the affiant.
[11] As to paragraph 25, it flows from paragraph 24.
Objections re Gattuso
[12] The questions examined from here on will be designated by the page number of the transcript on which they are found.
[13] Concerning the two Q98 questions, I think it must be considered that the defendants know very well the answers to the questions asked, and accordingly these questions need not be answered.
[14] As to question Q117, since the defendants are not challenging the validity of the plaintiff's registration, this question need not be answered.
[15] Question 152 deals with an aspect raised in an affidavit of Mr. Gattuso and accordingly should be answered.
Conclusion
[16] With a view to the hearing of the interlocutory injunction, the parties will have to conduct themselves as follows.
[17] The plaintiff will serve and file in the Court record within two days of this order Mr. Gattuso's supplementary affidavit dated December 16, 1999, but only paragraphs 1 to 25 and paragraph 37. All the other paragraphs of this affidavit as submitted at the hearing of the motion shall be struck out.
[18] The questions to be put to Mr. Gattuso in regard to his supplementary affidavit or in relation to question Q152 shall be formulated in writing and be served on counsel for the plaintiff on or before January 14, 2000 at 5:00 p.m. The written answers to these questions shall be served by the plaintiff on or before January 18, 2000 at 5:00 p.m. Any question arising out of the answers obtained and to be provided shall follow the same written process and this exercise shall be completed on the day of January 19, 2000.
[19] As was agreed in Court, the plaintiff's motion record shall be served and filed on January 21, 2000 and that of the defendants on January 26, 2000.
[20] Because the success on this motion was divided, there will be no ruling as to costs.
| Richard Morneau |
| Prothonotary |
Certified true translation
Martine Brunet, LL.B.
| Federal Court of Canada |
| Trial Division |
Date: 20000111
Docket: T-394-98
Between:
A LASSONDE INC.
Plaintiff
AND
ISLAND OASIS CANADA INC. and
ISLAND OASIS FROZEN COCKTAIL COMPANY INC.
Defendants
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: T-394-98 |
| STYLE: A. LASSONDE INC. |
Plaintiff
| AND |
| ISLAND OASIS CANADA INC. and |
| ISLAND OASIS FROZEN COCKTAIL COMPANY INC. |
Defendants
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: January 10, 2000 |
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATED: January 11, 2000
APPEARANCES:
Bruno Barrette for the plaintiff
Ali T. Argun
Mitchell Charness for the respondents
SOLICITORS OF RECORD:
Brouillette Charpentier Fortin for the plaintiff
Montréal, Quebec
Ridout & Maybee for the defendants
Ottawa, Ontario