Date: 20040601
Docket: A-352-03
Citation: 2004 FCA 215
CORAM: RICHARD C.J.
BETWEEN:
BOSTON PIZZA INTERNATIONAL INC. and
BOSTON PIZZA ROYALTIES LIMITED PARTNERSHIP
Plaintiffs
and
BOSTON MARKET CORPORATION, MCDONALD'S RESTAURANTS OF CANADA
LIMITED, BOSTON MARKET CANADA COMPANY and
GLOBAL RESTAURANT OPERATIONS OF IRELAND LIMITED
Defendants
AND BETWEEN:
BOSTON MARKET CANADA COMPANY and
GLOBAL RESTAURANT OPERATIONS OF IRELAND LIMITED
Plaintiffs by Counterclaim
(Respondents)
and
BOSTON PIZZA INTERNATIONAL INC. and
BOSTON PIZZA ROYALTIES LIMITED PARTNERSHIP
Defendant by Counterclaim
(Appellants)
Heard at Vancouver, British Columbia on June 1, 2004.
Judgment delivered from the Bench at Vancouver, British Columbia on June 1, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 20040601
Docket: A-352-03
Citation: 2004 FCA 215
CORAM: RICHARD C.J.
BETWEEN:
BOSTON PIZZA INTERNATIONAL INC. and
BOSTON PIZZA ROYALTIES LIMITED PARTNERSHIP
Plaintiffs
and
BOSTON MARKET CORPORATION, MCDONALD'S RESTAURANTS OF CANADA
LIMITED, BOSTON MARKET CANADA COMPANY and
GLOBAL RESTAURANT OPERATIONS OF IRELAND LIMITED
Defendants
AND BETWEEN:
BOSTON MARKET CANADA COMPANY and
GLOBAL RESTAURANT OPERATIONS OF IRELAND LIMITED
Plaintiffs by Counterclaim
(Respondents)
and
BOSTON PIZZA INTERNATIONAL INC. and
BOSTON PIZZA ROYALTIES LIMITED PARTNERSHIP
Defendant by Counterclaim
(Appellants)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia on June 1, 2004)
[1] This is an appeal from a decision of a Motions Judge refusing, in part, an application for summary judgment. In spite of the able argument of counsel for the Appellants, we have not been persuaded to interfere with the discretion exercised by the Motions Judge to refer the matter for trial.
[2] However, from the reasons of the Motions Judge, it appears that she may have intended to foreclose a determination at trial based on issue estoppel. On the basis of the arguments made before us, we are not at all satisfied that issue estoppel may not apply. It should be open for the parties to address issue estoppel at trial and for the Trial Judge to consider the question of issue estoppel should it be raised.
[3] The appeal will be dismissed with costs in the cause.
(Sgd.) "Marshall E. Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-352-03
Appeal from the Order of the Honourable Madam Justice Tremblay-Lamer dated July 17, 2003 dismissing the Counterclaim in part.
STYLE OF CAUSE: Boston Pizza International Inc. Et Al. v. Boston Market Corporation Et Al.
PLACE OF HEARING: Vancouver
DATE OF HEARING: June 1, 2004
JUDGMENT OF THE COURT: Richard C.J.
REASONS FOR JUDGMENT OF THE COURT: Richard C.J.
Rothstein J.A.
Nadon J.A.
DELIVERED FROM THE BENCH BY: Rothstein, J.A.
APPEARANCES:
|
Gregory Harney |
FOR THE APPELLANT (Respondent by Counterclaim) |
|
Glen Bloom |
FOR THE RESPONDENT (Appellant by Counterclaim) |
SOLICITORS OF RECORD:
|
Shields Harney Vancouver, B.C. |
FOR THE APPELLANT |
|
Osler Hoskin Harcourt |
FOR THE RESPONDENT |
Ottawa, Ontario