Date: 20030620
Docket: T-1706-02
Citation: 2003 FCT 773
Vancouver, British Columbia, Friday, the 20" day of June, 2003 Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
UNIVERSAL FOODS INC.
Plaintiff
-and -
HERMES FOODS IMPORTERS LTD., MASOUND MOTAMEDI,
TOUS ENTERPRISES LTD., H & R IMPORT - EXPORT INC.
HAMIDEH RAFATI, FEREYDON EBADIAN, SUPER ARZON INC.,
SUPER ARZON LTD., SUPER KHORAK INC., o/a THE MARKET
SUPER KHORAK, ASY'S MARKET INC., JOHN DOE AND JANE DOE
Defendants
REASONS FOR ORDER AND ORDER
[1] The order herein decides the issues of damages and costs payable to Tous Enterprises Ltd. ("Tous") by the Plaintiff as a result of the issuance to the Plaintiff of an ex parte Anton Piller order ("the Order") and its subsequent withdrawal.
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[2] The present action concerns a contested breach of trade-mark rights with respect to Iranian food products. On October 21, 2002, the Order was issued and, on November 5, 2002, the Order was executed on Tous resulting in the seizure of retail goods.
[3] The Order was withdrawn by the Plaintiff after considering Tous' Motion Record to have the order set aside; on December 5, 2002, the Order was set aside by consent. In the present motion (Document No. 66), Tous applies for the following relief:
2. Ordering the Plaintiff to return. to Tous Enterprises Ltd. within. four days under oath all product, documents and other things seized in the execution of the Anton Piller order against Tous Enterprises Ltd.
3. Ordering the Plaintiff to pay to Tous Enterprises Ltd. damages in the amount of $60,000 within 20 days of the date of the Order.
4. Awarding to Tous Enterprises Ltd., solicitor and its own client's costs in respect of this motion, and in relation to the previous adjournment of this motion.
[4] During the oral hearing, counsel for the Plaintiff confirmed that the Order was withdrawn on the advice of counsel. In my opinion, the Order would not have been made if all of the facts with respect to the trade mark had been divulged, which they were not. The Plaintiff admits it is at fault and does not deny its liability for damages and costs as a result.
[5] There is no dispute that, resulting from the execution of the Order, Tous suffered direct loss of sales in the sum of $750.00. I accept the evidence produced by Tous that loss of business, also as a direct result of the seizure, amounted to $625.00 per week from the date of the seizure.
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In my opinion, a reasonable estimation of the duration of this loss is ten weeks. Thus, I assess the loss of business at $6,250.00.
[6] In addition, I find that the loss of reputation suffered by Tous as a result of the actions taken by the Plaintiff to enforce the Order warrants a payment by the Plaintiff to Tous in the amount of $1,500.00.
[7] As to costs, in my opinion, Tous should not suffer any loss as a result of the Order being obtained, executed and subsequently withdrawn. Therefore, I find that solicitor-client fees are due and payable from the date of the issuance of the Order up to and including December 10, 2002, being the date up to which I find Tous incurred legal expenses to have the Order withdrawn.
ORDER
[8] With respect to solicitor-client costs, I find that the actual costs up to December 10, 2002, are $26,865.35, and I order these costs to be paid within 60 days.
[9] I order that the losses suffered by Tous as enumerated above in the total sum of $8,500.00 also be paid within 60 days.
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[10] All other costs incurred by Tous with respect to the Order subsequent to December 10, 2002, are to be determined as costs in the cause in the action herein.
[11] With respect to Tous' motion of April 29, 2003, (Document No. 173) for costs relating to the Plaintiff's failure to produce an affidavit of documents as required in the action, I order that these costs be costs in the cause.
(Sgd.) "Douglas R. Campbell"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1706-02
STYLE OF CAUSE: UNIVERSAL FOODS INC. v.
HERMES FOOD IMPORTERS LTD. et al.
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 19, 2003
REASONS FOR ORDER AND ORDER: CAMPBELL J.
DATED: June 20, 2003
APPEARANCES:
Mr. Colin A. Brown FOR PLAINTIFF
Mr. Bruce Green FOR DEFENDANTS
MASOUD MOTAMEDI &
HERMES FOOD IMPORTER LTD.
Mr. Paul Smith FOR DEFENDANT
TOUS ENTERPRISES LTD.
SOLICITORS OF RECORD:
Thomas McPherson & Associates FOR PLAINTIFF
Aurora, ON
Ogilvy Renault FOR DEFENDANTS
Toronto, ON
Oyen Wiggs Green & Mutala FOR DEFENDANTS
Vancouver, BC MASOUD MOTAMEDI &
HERMES FOOD IMPORTER LTD.
Paul Smith Intellectual Property Law FOR DEFENDANT
Vancouver, BC TOUS ENTERPRISES LTD.