Date: 20020304
Docket: T-1392-99
Neutral citation: 2002 FCT 240
Montreal, Quebec, March 4, 2002
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
SALTON APPLIANCES (1985) CORP.
-and- JASCOR HOME PRODUCTS INC.
Plaintiffs
and
SALTON INC.
Defendant
REASONS FOR ORDER AND ORDER
[1] The Plaintiffs in this trademark infringement action seek to compel Leon Dreimann, the Defendant's representative, to answer the following question refused on discovery:
Q-482 : "I would like to have a copy of all of the invoices of sales of the George Foreman grill and the purchase orders of the George Foreman grill which were sold to Canadian retailers."
[2] During the hearing, counsel for the Plaintiffs sought those invoices and purchase orders for the period from August 4, 1999 when the action was commenced to date.
[3] In my view, the Plaintiffs are entitled to their production. They are relevant to the question of the Defendant's liability. (See the definition of use in Section 4 of the Trade-Marks Act and Gordon A. MacEachern Ltd. v. National Rubber Co. Ltd. (1963), 41 C.P.R. 149.) In the circumstances, their production does not become improper because a reference has been ordered on issues of damages. (See Montana Band v. Canada [2001] F.C.J. No. 528.)
[4] Counsel for the Defendant argued production of all invoices and purchase orders was unnecessarily onerous. (See Reading & Bates Construction Co. et al. v. Baker Energy Resources Corp. et al. (1988), 24 C.P.R. (3d) 66 (F.C.T.D.). The Defendant did not substantiate this point by way of affidavit evidence.
ORDER
THIS COURT ORDERS that the Defendant produce the invoices and purchase orders referred to in question 482 of Leon Dreimann's examination for discovery at least three (3) days before his scheduled re-examination.
"François Lemieux"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020304
Docket: T-1392-99
BETWEEN:
SALTON APPLIANCES (1985) CORP.
-and- JASCAR HOME PRODUCTS INC.
Plaintiffs
and
SALTON INC.
Defendant
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1392-99
STYLE OF CAUSE: SALTON APPLIANCES (1985) CORP.
-and- JASCAR HOME PRODUCTS INC.
Plaintiffs
and
SALTON INC.
Defendant
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 4, 2002
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: March 4, 2002
APPEARANCES:
Mr. Hugues Richard FOR PLAINTIFFS
Mr. Christian Bolduc FOR DEFENDANT
SOLICITORS OF RECORD:
Léger Robic Richard
Montreal, Quebec FOR PLAINTIFFS
Smart & Biggar
Toronto, Ontario FOR DEFENDANT