Boaden Catering Limited v. Real FoodFor Real Kids Inc.

Boaden Catering Limited v. Real FoodFor Real Kids Inc.

The motions judge did not err: Boaden failed to exercise its right to cross-examine with reasonable diligence, the refusal to adjourn was a proper exercise of discretion, the alleged bad faith allegations in the defence were relevant to Boaden's claims and the domain-name test (rights/legitimate interest/bad faith) was applied; on the evidence Boaden registered and used the domain names in bad faith and there was no procedural unfairness; the costs award was proportionate given reprehensible conduct.

Citation
2017 ONCA 248
Parties
Plaintiff (appellant) / Defendant by Counterclaim (appellant): Boaden Catering Limited; Defendant (respondent) / Plaintiff by Counterclaim (respondent): Real Food For Real Kids Inc.; Defendant (respondent): David Starbuck Farnell
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
27 March 2017
Procedural Posture
Civil Domain Name / Trademark / Passing Off Dispute / Appeal From Summary Judgment Dismissing Action and From Costs Order
Outcome
Appeal dismissed in its entirety
Legal Topics
Summary Judgment, Procedural Fairness, Domain Name Disputes, Bad Faith Registration, Costs, Pleadings and Motions
Source Language
English
Civil Intellectual Property Commercial Law Procedural Law Summary Judgment Procedural Fairness Domain Name Disputes Bad Faith Registration +2 more

Case Brief

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Parties

Boaden Catering Limited

Plaintiff (appellant) / Defendant by Counterclaim (appellant)

Real Food For Real Kids Inc.

Defendant (respondent) / Plaintiff by Counterclaim (respondent)

David Starbuck Farnell

Defendant (respondent)

Procedural Posture

Civil Domain Name / Trademark / Passing Off Dispute / Appeal From Summary Judgment Dismissing Action and From Costs Order

Legal Issues

  1. 1 Whether the motions judge erred in refusing to adjourn the summary judgment motion
  2. 2 Whether the motions judge erred in refusing to strike paragraphs of the defence alleging bad faith
  3. 3 Whether Boaden was denied procedural fairness

Ratio Decidendi

The motions judge did not err: Boaden failed to exercise its right to cross-examine with reasonable diligence, the refusal to adjourn was a proper exercise of discretion, the alleged bad faith allegations in the defence were relevant to Boaden's claims and the domain-name test (rights/legitimate interest/bad faith) was applied; on the evidence Boaden registered and used the domain names in bad faith and there was no procedural unfairness; the costs award was proportionate given reprehensible conduct.

Court Disposition

Appeal dismissed in its entirety

Orders

  • Original motions judge's orders dismissing Boaden's action and denying the pleadings motion are upheld
  • Respondents awarded their costs of the appeal fixed at $7,500 inclusive of HST and disbursements