Date: 20000223
Docket: T-2523-95
Ottawa, Ontario, this 23rd day of February 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
FILA CANADA INC.
Plaintiff
- and -
JANE DOE and JOHN DOE and OTHER PERSONS, NAMES UNKNOWN, WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, DISTRIBUTE, ADVERTISE, OR DEAL IN UNAUTHORIZED OR COUNTERFEIT FILA MERCHANDISE, AND THOSE PERSONS LISTED IN SCHEDULE "A" IN THE STATEMENT OF CLAIM
Defendants
REASONS FOR ORDER AND ORDER IN RESPECT OF
THE DEFENDANT BINA BHARDWAJ
PELLETIER J.
[1] The plaintiffs make application for an order pursuant to a settlement agreement between them and the defendant, Bina Bhardwaj, who is unrepresented. The agreement provides for the payment of a certain sum of money as damages but if the defendant pays a lesser sum, the excess of the damages over the amount paid will be forgiven. In default, however, the defendant consents to judgment being entered for the entire amount of the damages less any amounts paid.
[2] The defendant also consents to judgment for a permanent injunction restraining him from infringing upon the plaintiffs" trade marks and drawing public attention to his goods in such a way as to cause confusion. Finally, the defendant consents to the surrender of the goods seized from him pursuant to a prior order of this Court.
[3] The Court is asked to issue an order incorporating the permanent injunction and the surrender of the seized property, leaving it open to the plaintiffs to apply for a monetary judgment in the event of default in the payment of the agreed upon amount.
[4] The Court requested written submissions from counsel as to the appropriateness of this method of proceeding. The Court referred to Rule 392 of the Federal Court Rules, 1998 which contemplates that all proceedings will be disposed of by order (as opposed to judgment) and to Carpenter Fishing Corporation v. Canada [1998] 2 F.C. 548, [1997] F.C.J. No. 1811, in which the Federal Court of Appeal held that there should only be one judgment at the conclusion of a trial and that judgment ought not to be rendered in installments. I can see no reason why this principle would not apply to judgment in default.
[5] Counsel responded to the request for submissions by pointing out that the settlement agreements contemplated both a permanent injunction and a money judgment in the event of default and that the orders sought simply gave effect to the settlement agreement.
[6] With respect to counsel, this is not responsive to the inquiry made by the Court. Given that the defendant is already subject to an interlocutory injunction, what is the purpose in obtaining a permanent injunction at this time if it is intended to keep the file open till the conclusion of the payment of the settlement amount? Furthermore, having regard to the decision of the Court of Appeal in Carpenter, where is the authority to spread the final order of the Court over a number of orders?
[7] There does not appear to be a need to depart from established principles in this case. The plaintiffs" property rights continue to be protected by the interlocutory injunction which continues in effect. The seized property is in storage; there is no evidence that it is at any risk. Finally, the dates upon which payment was to be made pursuant to the settlement agreement have passed. If the agreement was complied with, there is no need to keep the file open. If it was not complied with, an order could be made incorporating all elements of the relief sought. To the extent that the motion before the Court seeks some final relief now but seeks to hold the door open for a further final order at a later date, it is a motion which the Court should not grant. The motion is therefore dismissed.
ORDER
For the reasons set out above, the application for default judgment is dismissed.
"J.D. Denis Pelletier"
Judge