Digests

Sullivan Entertainment Inc. v. Anne of Green Gables Licensing Authority Inc.

T-1634-99

Muldoon J.

19/10/00

10 pp.

Motion to set aside order of Giles A.S.P. dismissing defendants' application for order striking certain paragraphs of statement of claim--Defendants asserting improper for third party to challenge Trade-marks Act, s. 9 by way of action--Discretionary decision of prothonotary must be set aside where decision clearly wrong as based upon wrong principle, misapprehension of facts, or raises question vital to final issue of case, thereby enabling motions judge to exercise own discretion de novo--Whether Court should disregard discretionary decision of prothonotary, decide matter de novo, and whether particular paragraphs of statement of claim should be struck as disclosing no cause of action--Decision herein not based on incorrect principle, misapprehension of facts, issue regarding question vital to final issue of case may exist--By dismissing motion, allowing paragraphs to remain, prothonotary determined novel action ought to be permitted to go forward as raising difficult issue of who constitutes third party, what makes public authority, who ought to be allowed benefits under s. 9--Giles A.S.P. made determination potentially vital to issue at hand--Ability of defendants to benefit from protection under Act, s. 9 when apparently failing to meet criteria of public authority challenged--A.S.P.'s decision addressing matters vital to final issue in parties' lawsuit--Appeal from prothonotary's decision dismissed--Trade-marks Act, R.S.C., 1985, c. T-13, s. 9 (as am. by S.C. 1990, c. 14, s. 8; 1993, c. 15, s. 58; c. 44, ss. 226, 236 (1)(c), (d); 1994, c. 47, s. 191).