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The Federal Court dismissed Milano Pizza Ltd.’s action and expunged the MILANO PIZZERIA & Design registration for lack of distinctiveness under the Trademarks Act.
The Court dismissed the appeal because the trial judge's factual findings — that flaking silver on bus bars caused a conductive dust that produced arcing and explosion, and that the municipality breached its duty by failing to implement preventative maintenance — were supported by evidence and not palpably or overridingly erroneous; the trial judge lawfully applied standards on industry practice, causation and damages, and his assessment of lost income and non‑pecuniary damages was within permissible discretion.
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The Halifax Regional Municipality owed a duty of care to contractors working in the motor control centre to perform reasonably regular inspections and cleaning of the bus bar compartments; the municipality breached that duty by failing to inspect or clean for years, allowing buildup of silver fines which the court finds on the balance of probabilities entered the cell and caused phase-to-ground arcing that severely burned Mr. Cheevers; Mr. Cheevers was not contributorily negligent; damages awarded: special damages $1,713.19, non-pecuniary damages $90,000 and past lost income $68,119; claim fo…
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