PRACTICE |
Contempt of Court |
Canplas Industries Ltd. v. Novik Inc.
T-491-00
2002 FCT 124, Hansen J.
1/2/02
19 pp.
Canplas manufacturing, selling roof vent with distinctive truncated pyramid-shaped cap under registered trade-mark "Duraflo" since 1992--In 1999 Novik started manufacturing Airflo 45 and Airflo 50 roof vents--Cap shape of Airflo 50 similar in design to cap shape of Canplas' "Duraflo" roof vent--In March 2000 Canplas commenced action against Novik alleging trade-mark infringement, passing-off--On March 28 Novik advised Canplas willing to modify appearance of roof vent, discontinue use of name "Airflo"--Canplas proposed settlement--Novik requested deletion of requirement to insure any infringing product "that has been shipped is recovered", replacement with to destruction of any infringing product "in its possession"--Michel Gaudreau executed settlement agreement on behalf of Novik on May 23, 2000--Canplas executed settlement agreement on June 16, 2000--Judgment on consent, obtained on July 14, 2000, providing that Novik shall comply with terms of settlement agreement--Preamble of settlement agreement stating Novik not selling any Airflo 50 vents as of date of settlement agreement--Settlement agreement providing preamble forming part of agreement--Canplas citing examples between May 26 and September 2000 where Airflo 50 vents displayed in stores--Federal Court Rules, 1998, r. 466 providing person who disobeys process or order of Court or acts so as to interfere with orderly administration of justice or to impair authority, dignity of Court guilty of contempt--Constituent elements of contempt must be proved beyond reasonable doubt--Canplas submitting since Novik representing not selling any Airflo 50 vents prior to execution of settlement agreement, any vents found in marketplace must have been sold after May 23, 2000; if sold between signing of settlement agreement and consent to judgment and date order issued, Novik acted so as to interfere with orderly administration of justice or to impair authority or dignity of Court, and if vents sold after order issued, Novik disobeyed order of Court and guilty of contempt in either circumstance--Assumption relevant date May 23 incorrect as settlement agreement providing takes effect upon execution of both parties, i.e. June 16, 2000--Canplas also assuming any Airflo 50 vents in marketplace must have been sold after May 23, but ample evidence to contrary--Even if not believing testimony no sales or deliveries of Airflo 50 occurred after April 7, 2000, Canplas failed to prove beyond reasonable doubt Novik displayed, offered for sale, sold any Airflo 50 vents after June 16, 2000--Canplas also submitting just as breach of undertaking given to court contempt of court, where terms of settlement agreement incorporated into terms of court order, breach of terms of settlement agreement constituting contempt of court--Arguing Novik's statement in preamble to settlement agreement undertaking had not sold Airflo 50 vents prior to execution of agreement--Undertaking is pledge or promise to do, refrain from doing certain act in future--Canplas arguing careless, reckless, negligent, inadvertent, casual conduct giving rise to contempt-- Stating execution of agreement by Gaudreau without verifying changes instructed counsel to make in fact made constituting careless, negligent or reckless conduct--While refusal to recover any Airflo 50 vents previously shipped equally consistent with Novik not having sold any of offending product at time of negotiations, on July 7, 2000 Canplas aware of earlier sales--At that time, Canplas could have withdrawn motion for consent judgment and pursued action commenced earlier, or brought action for misrepresentation--Order on consent issuing based on consent of parties, not on representations parties made to each other to resolve dispute--Should not be construed as Court condoning misrepresentations by party, rather going to nature of relief sought--Canplas not proving beyond reasonable doubt Novik guilty of contempt--Federal Court Rules, 1998, SOR/98-106, r. 466.