Date: 20000627
Docket: A-480-99
CORAM: LÉTOURNEAU, J.A.
EVANS, J.A.
SHARLOW, J.A.
BETWEEN:
ALLSTATE INSURANCE COMPANY OF CANADA,
ALLSTATE du CANADA, COMPAGNIE d'ASSURANCE
and ALLSTATE INSURANCE COMPANY
Appellants
- and -
HARRY WILLIAM GRANT and
JAMES THOMAS BERNARD GORMAN c.o.b. as
ALLSTAR INSURANCE AGENCY
Respondents
Heard at Toronto, Ontario, on Tuesday, June 27, 2000
Judgment delivered from the Bench at Toronto, Ontario, on Tuesday, June 27, 2000
REASONS FOR JUDGMENT OF THE COURT: EVANS J.A.
Date: 20000627
Docket: A-480-99
CORAM: LÉTOURNEAU, J.A.
EVANS, J.A.
SHARLOW, J.A.
BETWEEN:
ALLSTATE INSURANCE COMPANY OF CANADA,
ALLSTATE du CANADA, COMPAGNIE d'ASSURANCE
and ALLSTATE INSURANCE COMPANY
Appellants
- and -
HARRY WILLIAM GRANT and
JAMES THOMAS BERNARD GORMAN c.o.b. as
ALLSTAR INSURANCE AGENCY
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, June 27, 2000)
EVANS J.A.
| _. This is an appeal from a decision of the Motions Judge, dated May 5th , 1999, dismissing the appellants" appeal from an order of a Prothonotary, dated April 16th , 1999, in which he dismissed a motion by the appellants ("Allstate") for a reference pursuant to Rule 153 of the Federal Court Rules, 1998 . |
| _. The motion arose from an action by the appellants for damages from the defendants for trade-mark infringement and passing-off over a period that started eight years ago and still continues. The appellants sought an order deferring the quantification of their lost profits and any profits wrongfully made by the defendants, until after the question of liability had been determined at trial. |
| _. In dismissing the motion, the Prothonotary held that Allstate had failed to establish that a reference would minimize costs or that the complexity of the case would be increased unnecessarily if the issues of liability and damages were determined together at trial. |
| _. The Motions Judge found no reviewable error in the Prothonotary"s order, on the ground that there was no evidence that a reference would avoid unduly increasing the complexity of the trial and, accordingly, that it was unnecessary to consider whether the Prothonotary had misapprehended the facts when he concluded that a reference had not been shown to minimize costs. |
| _. In the alternative, the Motions Judge stated that she would dismiss the appeal in the exercise of her own discretion, since there was no evidence on the question of complexity, and issues of the quantification of damages and liability are inevitably intertwined in passing-off actions. |
| _. We have not been persuaded that the Motions Judge erred in dismissing the appeal from the Prothonotary, given the narrow grounds on which such discretionary orders may be set aside and the principle that it is generally more efficient that liability and remedy be determined together. |
| _. An allegation that quantification of damages might occupy one or two days of a four or five day trial can properly be found not to constitute evidence that a reference would avoid undue complexity. Further, in our opinion it was not an error of law for the Prothonotary and the Motions Judge to formulate the test for ordering a reference in this case in terms of unnecessary complexity, rather than the closely related consideration of the efficient use of time and resources. |
| _. For these reasons, the appeal will be dismissed with costs. |
"John M. Evans"
J.A.
| _. FEDERAL COURT OF CANADA |
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: ALLSTATE INSURANCE COMPANY OF CANADA, ALLSTATE du CANADA, COMPAGNIE d'ASSURANCE and ALLSTATE INSURANCE COMPANY |
Appellants
| HARRY WILLIAM GRANT and JAMES THOMAS BERNARD GORMAN c.o.b. as ALLSTAR INSURANCE AGENCY |
Respondents
DATE OF HEARING: TUESDAY, JUNE 27, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: EVANS J.A. |
Delivered at Toronto, Ontario on Tuesday, June 27, 2000
APPEARANCES: Mr. Mark Mitchell
Mr. Julie Dabrusin
| SOLICITORS OF RECORD: Lang Michener |
Barristers & Solicitors
P.O. Box 747, Suite 2500
| BCE Place, 181 Bay Street |
Toronto, Ontario
M5J 2T7
Barristers & Solicitors
1900-181 University Avenue
Toronto, Ontario
M5H 3M7
FEDERAL COURT OF APPEAL
Date: 20000627
Docket: A-480-99
BETWEEN:
| ALLSTATE INSURANCE COMPANY OF CANADA, ALLSTATE du CANADA, COMPAGNIE d'ASSURANCE and ALLSTATE INSURANCE COMPANY |
Appellants
| HARRY WILLIAM GRANT and JAMES THOMAS BERNARD GORMAN c.o.b. as ALLSTAR INSURANCE AGENCY |
Respondents
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