Boston Pizza International Inc. v. Boston Market Corp.

Boston Pizza International Inc. v. Boston Market Corp. Court (s) Database Federal Court of Appeal Decisions Date 2004-06-01 Neutral citation 2004 FCA 215 File numbers A-352-03 Decision Content Date: 20040601 Docket: A-352-03 Citation: 2004 FCA 215 CORAM: RICHARD C.J. ROTHSTEIN J.A. NADON J.A. 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. ROTHSTEIN J.A. NADON J.A. 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) ROTHSTEIN J.A. [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