Value Village Market ( 1990 ) Ltd. v. Value Village Stores Co.
T-2707-92
Reed J.
29/10/99
8 pp.
Separate determination of issues-Motion for order to allow (i) trade-mark infringement action to proceed to trial without requiring parties to adduce evidence on extent of alleged infringement, questions relating to damages, profits arising from infringement; (ii) amendments to statement of defence, counterclaim-Issues should be tried separately if Court satisfied, on balance of probabilities, in light of evidence and all circumstances of case (including nature of claim, conduct of litigation, issues, remedies sought), severance more likely than not to result in just, expeditious, least expensive determination of proceeding on merits: Illva Saronno S.p.A. v. Privilegiata Fabrica Maraschino "Excelsior", [1999] 1 F.C. 146 (T.D.)-Start with premise normally more efficient if all issues determined together; bifurcating proceeding normally leading to duplication of procedural steps, costs-Extent to which overall costs, savings of time would result from bifurcation of issues major consideration-Defendant using trade-mark "Value Village" in connection with second-hand clothing stores-Court not convinced difficulty in ascertaining profits attributable to Canadian business locations-If financial information not already provided, requirement that now be produced not likely to lengthen appreciably oral discovery process-Defendant not showing separation of issues more likely than not to result in more just, expeditious, less expensive determination of proceeding on merits than continuation of unified proceeding-As to proposed amendments to statement of defence, counterclaim, Court now applying case management rules, particularly when action lingering in Court for many years-Action commenced in 1992-In 1998 action allowed to continue on provision of agreed-upon timetable, requiring all motions regarding pleadings to be filed by February 1999-When action allowed to proceed on basis of timetable setting out date for completion of filing of motions respecting pleadings, amendment resting on facts reasonably knowable by party before `cut-off' date should not be allowed after that date-Addition of Trade-marks Act, s. 7(a) claim not allowed-Amendment involving addition of legal characterization of facts not likely to involve lengthening of pre-trial proceedings-Amendment to allow for argument on additional remedy limiting geographic scope of plaintiff's trade-mark allowed-Trade-marks Act, R.S.C., 1985, c. T-13, s. 7(a).