Benchmuel v. Gags N Giggles

Benchmuel v. Gags N Giggles

Defendants failed to establish a reasonable explanation for failing to file a Statement of Defence because their account of an alleged settlement was uncorroborated, contradicted by multiple plaintiff affidavits, implausible in its terms, and no reasonable steps were taken to verify or formalize the settlement; therefore the conjunctive test for setting aside the default judgment was not satisfied and the motion was dismissed with costs.

Citation
2017 FC 720
Parties
Plaintiff: Chai Benchmuel; Plaintiff: 9303-0484 Quebec Inc. dba Canada Athletics; Defendant: Gags N Giggles; Defendant: FunNTees Sports and Gifts; Defendant: Saleem Malik; Defendant: Nina Malik
Court
Federal Court
Jurisdiction
Canada
Judgment Date
25 July 2017
Procedural Posture
Copyright Infringement and Passing Off; Application for Injunctions and Damages / Motion to Set Aside Default Judgment (rule 399(1)) After Entry of Default Judgment
Outcome
Motion dismissed
Legal Topics
Setting Aside Default Judgment, Service of Process, Statutory Damages Under Copyright Act, Punitive Damages, Preservation of Property, Settlement Communications
Source Language
English
Copyright Intellectual Property Civil Procedure Injunctions Default Judgment Setting Aside Default Judgment Service of Process Statutory Damages Under Copyright Act +3 more

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Parties

Chai Benchmuel

Plaintiff

9303-0484 Quebec Inc. dba Canada Athletics

Plaintiff

Gags N Giggles

Defendant

FunNTees Sports and Gifts

Defendant

Saleem Malik

Defendant

Nina Malik

Defendant

Procedural Posture

Copyright Infringement and Passing Off; Application for Injunctions and Damages / Motion to Set Aside Default Judgment (rule 399(1)) After Entry of Default Judgment

Legal Issues

  1. 1 Whether defendants provided a reasonable explanation for failing to file a statement of defence
  2. 2 Whether defendants disclosed a prima facie defence on the merits
  3. 3 Whether the motion to set aside was brought within a reasonable time

Ratio Decidendi

Defendants failed to establish a reasonable explanation for failing to file a Statement of Defence because their account of an alleged settlement was uncorroborated, contradicted by multiple plaintiff affidavits, implausible in its terms, and no reasonable steps were taken to verify or formalize the settlement; therefore the conjunctive test for setting aside the default judgment was not satisfied and the motion was dismissed with costs.

Court Disposition

Motion dismissed

Orders

  • Motion to set aside the default judgment is dismissed
  • Costs payable by the Defendants to the Plaintiffs fixed at $1,800 inclusive of fees, disbursements and taxes