Date: 19980728
Docket: T-96-98
BETWEEN:
A & E TELEVISION NETWORKS
Plaintiff
and
ALLIANCE COMMUNICATIONS CORPORATION
Defendant
REASONS FOR ORDER
CAMPBELL, J.:
[1] On this appeal in this action for infringement of the trade mark "Biography", the plaintiff argues that an error is made in the June 16, 1998 finding of Associate Senior Prothonotary Giles as follows:
| Because there is no direction [sic] connection between the two cases and punitive damages are only awarded in respect of conduct in relation to the matter being litigated, I struck the paragraphs. |
[2] As a result of this finding, the following paragraphs 20 and 23 (e) of the statement of claim were struck:
20. Alliance has a history of attempting to misappropriate AETN's trade-marks for its own use. In 1996, Alliance applied to the CRTC for a license to operate a cable television network under the name THE HISTORY AND ENTERTAINMENT NETWORK despite Alliance's knowledge that AETN owned and employed conflicting famous marks and the names ARTS & ENTERTAINMENT NETWORK and THE HISTORY CHANNEL in respect of competing cable television channels in Canada and the United States. After AETN commenced a trade-mark infringement action against Alliance, Alliance amended its application to the CRTC to use the name HISTORY TELEVISION instead of THE HISTORY AND ENTERTAINMENT NETWORK.
23. AETN therefore claims: ...
(e) punitive damages for Alliance's flagrant and repeated infringement of AETN's intellectual property rights;
[3] Given the following reasoning of Craig J. in Guaranty Trust Co. of Canada v. Public Trustee et al. (1978), 20 O.R. (2d) 247 (Ont. H.C.) at 251, which Associate Senior Prothonotary Giles apparently and properly applied, I find no error in principle in the striking of paragraph 20:
Dealing firstly with paras. 21 to 23 inclusive, the sale of shares in Guaranty Trust: The plaintiff does not allege in the statement of claim that it sustained any compensatory or real damages related to the sale of the shares; and no claim is made in the prayer for relief directed towards the sale of shares (unless it can be said that the claim for punitive damages is related), i.e., it must be taken that the plaintiff did not suffer any real or compensatory loss or damages resulting from the alleged sale of shares; and not having suffered any such real or compensatory loss or damages it cannot be said that "loss or damages" is aggravated by this conduct of the defendant or that punitive or exemplary damages can be awarded to the plaintiff for conduct unrelated to the loss or damage actually sustained by the plaintiff. It seems to me that to decide otherwise would permit any and all allegations of outrageous conduct in cases where punitive damages are claimed; even though such conduct bears no relationship to the real or compensatory damages or the manner in which they were caused.
[4] However, by striking the whole of paragraph 23 (e), the plaintiff is precluded from making a proper claim for conduct found within the action herein. To this extent, I find an error in principle. Accordingly, I grant the appeal in part, and reinstate paragraph 23 (e), but amended to read as follows:
(e) punitive damages for Alliance's flagrant infringement of AETN's intellectual property rights;
[5] Costs in the cause.
"Douglas R. Campbell"
Judge
Toronto, Ontario
July 28, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-96-98
| STYLE OF CAUSE: A & E TELEVISION NETWORKS |
- and -
| ALLIANCE COMMUNICATIONS CORPORATION |
DATE OF HEARING: JULY 28 , 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: CAMPBELL, J.
DATED: JULY 28, 1998
APPEARANCES:
Mr. David G. Allsbrook
For the Plaintiff
Mr. William H. Richardson
For the Defendant
SOLICITORS OF RECORD: Fasken Campbell Godfrey
| Toronto Dominion Bank Tower |
| Toronto-Dominion Centre |
| Toronto, Ontario |
| M5K 1N6 |
For the Plaintiff
McCarthy Tétrault
Suite 4700
Toronto Dominion Bank Tower
Toronto-Dominion Centre
Toronto, Ontario
| M5K 1E6 |
For the Defendant
FEDERAL COURT OF CANADA
Date: 19980728
Docket: T-96-98
Between:
| A & E TELEVISION NETWORKS |
Plaintiff
- and -
| ALLIANCE COMMUNICATIONS CORPORATION |
Defendant
REASONS FOR ORDER