Date: 20000915
Docket: T-2556-97
BETWEEN:
MAYFLOWER TRANSIT, INC.
Plaintiff
(Defendant by Counterclaim)
- and -
BEDWELL MANAGEMENT SYSTEM INC.,
MAYFLOWER MOVING SYSTEM INC., and
JAMES R. BEDWELL
Defendants
(Plaintiffs by Counterclaim)
REASONS FOR ORDER AND ORDER
McKEOWN J.
[1] In my view, the three defendants are in contempt of Court in this particular case. The three defendants entered into a consent order whereby:
| "1. The Defendants, their officers, directors, agents, employees, licensees and any person acting under the instructions or with consent or authority of or in concert with the Defendants, are hereby restrained, on an interlocutory basis until trial or further Order of this Court, from: |
| ... |
| (c) Using and/or distributing stationery, including letterhead, business forms and literature including flyers and brochures which bear the Mayflower Marks [as defined in the Notice of Motion] and the trade name Mayflower; |
| ... |
| (e) Having the Defendants' employees wear or bear in any manner uniforms which display the Mayflower Marks [as defined in the Notice of Motion] and the trade name Mayflower; |
| ... |
| (g) From using the Mayflower Marks [as defined in the Notice of Motion] and the trade name Mayflower, in any and all Yellow Page and other directory advertisements which are initiated or renewed during the term of this Order. |
[2] The plaintiff introduced evidence with respect to three separate alleged breaches of the consent order signed by Rothstein J., as he then was, on January 19, 1998. The first alleged breach involved a personally addressed flyer bearing both the name "Bedwell Moving Systems" along with the Mayflower trademark. Ms. Masur, a real estate agent in Ajax, testified that she had acted with respect to the sale of 19 Wickens Crescent in Ajax in the fall of 1998. She had no previous knowledge of the vendor Patricia Milne prior to the listing of her house. On September 10, 1998 she was at the house when Ms. Milne collected her mail. Included in the mail was a flyer from Bedwell Moving Systems which bore the Mayflower trademark on the envelope. The letter was addressed to Patricia Milne. Ms. Milne did not wish to use Bedwell Moving Systems, so she handed the flyer to the real estate agent.
[3] Mr. Bedwell, one of the defendants, testified that Bedwell Management System Inc. used a bulk mail delivery service to send flyers to potential customers. He stated that Bedwell Management System Inc. did not mail out any personally addressed flyers to potential customers in the area. However, Ms. Masur testified that it was the policy of all the local moving companies to get a copy of any new listings and send flyers out to them. I am satisfied that the sales person or someone within Bedwell Moving Systems arranged to deliver this flyer to Ms. Milne.
[4] Mr. Bedwell also admitted that the flyer could have been mailed out by a realtor or a sales representative, as he had not informed them to cease distribution of any Bedwell literature bearing the Mayflower trademark. In my view, this constitutes a breach of the order notwithstanding Mr. Bedwell's introduction of new flyers and brochures in January 1998.
[5] The plaintiff introduced evidence with respect to a second alleged breach of Rothstein J.'s order concerning an employee wearing a t-shirt with the name "Bedwell" on it and underneath in much smaller letters: "Mayflower celebrates 50 years of service". Ms. Hugh, a producer-reporter for CTV News, testified that she attended Bedwell's Moving Services Offices on August 26, 1998 and took videotapes of scenes around the office. She also interviewed Mr. Bedwell on that date. During the course of the interview, she indicated that she wanted to obtain a shot of a driver in one of the Bedwell trucks. Mr. Sam Williams was the driver and he was wearing the aforementioned t-shirt.
[6] Mr. Bedwell tried to explain this situation by saying that Mr. Williams normally wore overalls in his usual capacity as a maintenance worker. He stated that under normal circumstances, Mr. Williams' overalls would have hidden the t-shirt's reference to "Mayflower". Mr. Bedwell also stated that he did not view the scene in question until he saw the excerpts from the videos on CTV National News. In addition, he testified that he had issued instructions to the effect that employees were not to wear the old t-shirts anymore. However, he did not attempt to recall the t-shirts. I accept the testimony of Ms. Hugh that Mr. Williams was presented as a driver of Bedwell and, in my view, this was done with the concurrence of Mr. Bedwell. This also constitutes a breach of Rothstein J.'s order.
[7] The third alleged breach consisted of a Yellow Pages listing on the Internet showing "Aero Mayflower Transit Inc." This listing was found by a search conducted on October 13, 1998 by Mr. Clifton, an articling student. Mr. Clifton's search also uncovered a second listing under "A Allied Bedwell Moving Systems". Both listings referred to the same telephone number. Mr. Bedwell testified that he did not know that there were any such listings on the Internet, and that at that time there was no payment required to be listed on the Internet. In addition, Mr. Clifton testified that there was a listing in the 1998-99 York region phone book which showed "A Allied Bedwell Moving Systems" and "Aero Mayflower Transit, Inc." at the same phone number as the large ad for Bedwell Moving Systems. Mr. Bedwell testified that the one line entry for "A Allied Bedwell Moving Systems" and "Aero Mayflower Transit, Inc." were included without his knowledge, and there was no payment made. I am not satisfied that the plaintiff has shown beyond reasonable doubt that Mr. Bedwell was aware of these two listings. Therefore, I do not find a breach of section (g) of the order of Rothstein J.
[8] In deciding on the appropriate penalty in this case, I must keep in mind that where parties consent to an order, there is a presumption that the parties have taken into account the consequences of the order being issued. Accordingly, lack of compliance is deemed as willful; see TNT Canada Inc. v. TNT Motor Lines Ltd. (1990), 31 C.P.R. (3d) 165 (F.C.T.D.) at 166.
[9] I also must take into account the presence of good faith as an explanation for contempt when I am considering the penalty; see Cutter (Canada) Ltd. v. Baxter Travenol Laboratories of Canada, Ltd., [1987] 2 F.C. 557 (C.A.) at 564. I note that Mr. Bedwell did have an incorporated company named "Mayflower Moving System Inc." which was one of the defendants here, and of which he was a director. Mr. Bedwell did take action to remove references to "Mayflower" from his building by removing a number of signs, particularly the sign on the top of his building which formally included the name "Mayflower". In addition, Mr. Bedwell did prepare new flyers and t-shirts following the issuance of the injunction order.
[10] Each of the defendants is liable with respect to the two breaches of the order that I have found. I note that Mr. Bedwell was a party to the injunction issued by Justice Rothstein on consent and that he was the guiding mind of the two corporations. The corporations were not represented by a solicitor because they did not take any actions pursuant to the orders of Prothonotary Lafrenière.
[11] The defendants are liable with respect to the flyer because the consent order specifically provides that any action taken by a third party with the consent of the defendants is a breach of that order. There is no doubt the defendants did not take sufficient action to prevent a breach of the order.
ORDER
I therefore impose a fine of $5,000.00 against each of Bedwell Management Systems Inc. and Mayflower Moving Systems Inc. and a fine of $3,000.00 against the defendant James R. Bedwell. In addition, the defendants shall pay the plaintiff the costs of this action. The costs shall be payable by the defendants in such proportion as they
Page: 7
agree between themselves or on a proportional basis with respect to their liability for the fine.
"W.P. McKeown"
JUDGE
Ottawa, Ontario
September 15, 2000