Colornow Canada Limited v. Rivage Institute of Advanced Esthetics Inc.

Colornow Canada Limited v. Rivage Institute of Advanced Esthetics Inc.

Appeal allowed because the motion judge failed to properly assess the merits of the 'wrong defendant' defence, failed to account for the appellant's potential counterclaims and the prejudice caused by seizure of the trademark, and failed to attempt to impose appropriate conditions; the default judgment and noting of default were set aside on specified conditions including payment of costs, filing of a defence and conditional return of the trademark.

Citation
2016 ONCA 661
Parties
Plaintiff (respondent): Colornow Canada Limited; Defendant (appellant): Rivage Institute of Advanced Esthetics Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
8 September 2016
Procedural Posture
Civil / Appeal: Motion to Set Aside Default Judgment
Outcome
Appeal allowed; default judgment and noting of default set aside on conditions.
Legal Topics
Default Judgment, Setting Aside, Wrong Defendant, Counterclaim for Rent, Trademark Seizure, Costs, Conditional Relief
Source Language
English
Civil Procedure Contract Intellectual Property Property Commercial Law Default Judgment Setting Aside Wrong Defendant +4 more

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Parties

Colornow Canada Limited

Plaintiff (respondent)

Rivage Institute of Advanced Esthetics Inc.

Defendant (appellant)

Procedural Posture

Civil / Appeal: Motion to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the motion judge properly assessed the 'wrong defendant' defence
  2. 2 Whether the motion judge considered the appellant's potential counterclaim for rent and trademark misuse
  3. 3 Whether the seizure of the trademark caused prejudice warranting relief

Ratio Decidendi

Appeal allowed because the motion judge failed to properly assess the merits of the 'wrong defendant' defence, failed to account for the appellant's potential counterclaims and the prejudice caused by seizure of the trademark, and failed to attempt to impose appropriate conditions; the default judgment and noting of default were set aside on specified conditions including payment of costs, filing of a defence and conditional return of the trademark.

Court Disposition

Appeal allowed; default judgment and noting of default set aside on conditions.

Orders

  • Appellant to pay $7,500 costs of the appeal.
  • Appellant to pay $22,000 costs thrown away.