Date: 20000105
Docket: T-1030-94
BETWEEN :
CHANEL, S.A. and CHANEL S.A.
and CHANEL INC. and CHANEL BOUTIQUE INC.
Plaintiffs
- and -
3095-1446 QUEBEC INC., 2525-6637 doing business as FROU FROU,
JOHANNE CARON and 2434-6553 QUÉBEC INC. doing business
together in a partnership as IMPORTATION JOCA/JOCA
IMPORTATION, FLORENCE MALKA doing business as CRÉATIONS
FLORENCE H, 2957-7988 QUÉBEC INC. doing business as STYLE &
DESIGN SONIA and SONIA RÉMY, 2961-6307 QUÉBEC INC. doing
business as ENTREPÔT DE LA CHAUSSURE ITALIENNE, BOUTIQUES
DARRELL INC. doing business as VA BENE, 1062202 ONTARIO
LIMITED operating as FORTY FORTY SHOWROOM, LA SETA IMPORT
EXPORT LTD. sometimes trading as LO "SPACCIO", ACCESSOIRES
CORETTI INC., MARIA DEL MAR LORENZO, LAZARO J. GONZALES,
DONALD J. HOFFMAN, SHAMON SHAI GAVRIECOV, MOHAMMED
SABURI, CYRUS HUSSEIN, CAPITAL SOUVENIRS SALES LTD., REZA
M. ISPAHANY, RICHARD S. CLARK, MARIAM MAURO, SONIA
HOLICOVA, ROMOLO AMICONE, AYALEW ZELKE, JIMMY CHEN,
HANA BULKOVA, HUI LAI QIAO, SHAO HUI CHEN, ISABELLA
SOUPART, DAVID REID, BRETT R. TARADASH, STEVE ALBERT,
JANE DOE, an Oriental female, street vendor, operating a stall on
Dundas Street near Beverly Street, in Toronto, served on July 8, 1994,
SAITOH CANADA, MELANIE HAMILTON, VICTORIA FLORENCE
WHITEHEAD, JOHN DOE, a black male, street vendor, operating a stall
on Yonge Street, in Toronto, served on July 12, 1994, ZBIGNIEW
PRZESZLO, ROBERT PRESAUD, AYALEW ZELKE, TOM ASHBY,
PHILIP BANNON, JONATHAN ALLAN CASSIDY-WALSH, JESSIE
ZHOA, JOHN SMITH, BOUTIQUE SALAMBO, JAN LI GROUP LIMITED
doing business as JAN LI FASHIONS, VINLINAR FASHIONS &
FLOWERS, VIJAY KHANNA SHANKARDAS, L"ELEGANTE LIMITED,
SHAQ-HUI CHEN, TI AMO WAREHOUSE OUTLET, YOUNG AE HA
doing business as KIWI FASHIONS, 1093282 ONTARIO INC. doing
business as MIRANDA"S AGAIN, JEAN NICCLA doing business as
SUMMERTIME, PLANEX IMPORT INC. doing business as KYOZE,
MITCHIE"S MATCHING INC., AI J. CHEN CO. LTD., 874633 ONTARIO
LTD. doing business as L"ATTACHÉ, LAS FONG, YOSSEF
GAVRIELOFF doing business as JMSY FASHIONS, G.J. CASUAL
WEAR, DRAGON LEATHER GOODS, DOROTHEA PING ABBAS doing
business as CHIC ACCESSORIES, FRANK JAMES SALVANN, JONAS
ARABA, LUCY CHEE doing business as LUCY"S COSMETICS, 1008266
ONTARIO LTD. c.o.b. YOLAND LEATHER GOODS, VEE BOUTIQUE &
CLEANERS, YU FASHIONS, MANINDER SINGH, SEETA PERSAUD,
NGUYEN NGOC, ROBERT DAWSON, ANTHONY FARERA, THE SHIRT
FACTORY, REFELCTIONS OF ANIKO INC., KIN MING LO, HONG YE,
KOWK WAH LAI, SHIRA MAY, YONAS ARAYA TESFAMARAIAM, ROB
DOBSON, DALIA RAANAN, A. JAFARI AZON ABADI ZEINOL, PETER
ABOUSA, ABBAS SHERAZEE d.b.a. BLACK SURF, 9020-6269 QUÉBEC
INC. doing business as CHALYNE ACCESSOIRES, 123808 CANADA
INC., RAPHAËL LEATHER GOODS INC./RAPHAËL MAROQUINERIE
INC., NEW TOKYO GIFT SHOP LTD., KAREN BRYSON, CHRIS TURO,
MISSIE MICHAEL, TEFERI GEBREAL MICHAEL, SIGAL BENOUALID,
MONDAINE BOUTIQUE, THE KEY PLACE, THE WORLD OF SHOES,
CHERRY DESIGNER STORE INC., AMHA SEIFU, HARVEY LITMAN,
FRANK MICHAEL MONTE, JAGJIT INC., PEGGY CHEN"S APPAREL,
HENRY S. STRASSER, JES HANDBAG DESIGN, AGNES LAZLO AND
JUDI REVAI doing business together as TRENDY ACCESSORIES, LE
SACOCHE, BAGS O"FUN INC., SNOWFLAKE TRADING CORP. LTD.,
CHAUSSURES ROSATI Y.O. INC. and LEOPARDI INC., 2848-7908
QUÉBEC INC. doing business as BOUTIQUE FEU VERT, MIREILLE
BAREGEL, LES SOIES MARSHALL LTÉE., LES IMPORTATIONS MINA
LEE INC., BIJOUTERIE CATHY INC. doing business as AU COIN DU
TEMPS II, VINAY CHADHA, IVAN FUCHS, BRUCE HARPER
ENTERPRISES INC., KUN KOOK CHUNG doing business as DAISY
GIFT CENTRE, VIRGINIA CAMPBELL doing business as LEG-IN-
BOUTIQUE, 487072 B.C. LTD. doing business as RODEO JEWELLERS,
GIOIELLI HOLDINGS LTD., GRAND JEWELRY LTD., MATTHEWS
FASHIONS INC., CHIVEN TRAN doing business as JADE DRAGON
JEWELLERY REG"D, 9054-9502 QUÉBEC INC. doing busienss as
BIJOUTERIE DRAGON SAIGON, BIJOUTERIE WING THAI INC., 9028-
2435 QUÉBEC INC. doing business as YU-AN INC., SUNGHE SU, MIMO
DESIGN INC., SUNGHO WON doing business as QUEEN"S FABRIC &
BUTTON, AMARICHE INC., WAYNE VAN doing business as BAO NGOC
JEWELLERY & WATCH, 1190932 ONTARIO LTD. doing business as
EVOLUTION J"S, VK DESIGN doing business as LACO SAC, LISA
HOUSE JEWELLERY & WATCHES LTD. doing business as LISA"S GEM
& WATCHES, BENJAMIN LAU doing business as MOSAIC DESIGN
JEWELLERY, 1173003 ONTARIO INC doing business as NGOC CHAU
JEWELLERY & WATCHES, 1119458 ONTARIO LTD. doing business as
S & M Sales, VAN BONG LE doing business as TAN QUANG
JEWELLERY, BIJOUX SOHO INC. et SERGE CARPENTIER,
AMARICHE INC., VK DESIGN INC. doing business as LACO SAC, LISA
HOUSE JEWELLERY & WATCHES LTD. doing business as LISA"S
GEMS & WATCHES, VAN BONG LE doing business as TAN QUANG
JEWELLERY, BENJAMIN LAU doing business as MOSAIC DESIGN
JEWELRY, 1173003 Ontario Inc. doing business as NGOC CHAU
JEWELLERY, WAYNE VAN doing business as BAO NGOC JEWELLERY
& WATCH, SUNGHO WON doing business as QUEEN"S FABRIC &
BUTTON, 1119458 ONTARIO LTD. doing business as S & M Sales and
SHAI SUDRI, 1190932 ONTARIO LTD., doing business as EVOLUTION
J"S and JOHN DOE AND JANE DOE AND OTHER PERSONS
UNKNOWN TO THE PLAINTIFFS WHO OFFER FOR SALE, SELL,
IMPORT, DISTRIBUTE, MANUFACTURE, PRINT, ADVERTISE,
PROMOTE, SHIP, STORE, DISPLAY OR OTHERWISE DEAL IN
COUNTERFEIT CHANEL ITEMS
Defendants
REASONS FOR JUDGMENT
PELLETIER J.:
[1] The Plaintiffs Chanel S.A. and Chanel S.A. and Chanel Inc. and Chanel Boutique Inc. apply for default judgment against three defendants. The fact that judgment had not been obtained against these defendants appears to have come to the plaintiffs" attention as a result of a Notice of Status Review having been delivered to the plaintiffs on October 8, 1998 with respect to this file.
[2] The plaintiff"s responded to the Notice of Status Review by filing submissions on June 7, 1999 which included the motions for default judgment which are now before me. However, in the interim, on January 7, 1999 a fresh Statement of Claim was issued in support of a new Anton Piller order. On the same date Richard A.C.J. (as the then was) made an order that the Anton Piller order pursuant to which these executions had been made would not be renewed. The executions which are the subject of these applications for default judgment took place in 1994, 1995, and 1996.
[3] According to the submissions of counsel dated June 7, 1999, it appears that these three matters are the only claims remaining outstanding in this file. The plaintiffs have obtained judgment against 135 defendants over the course of the life of this claim. The "rolling" Anton Piller order pursuant to which goods were seized and defendants added to claim has expired and will not be renewed. No new defendants will be added to this claim.
[4] The Court"s usual practice is to not accept motions until such time as the status review of a claim has been completed. See S.O.C.A.N. v. Malcolm Enterprises Ltd., [1999] F.C.J. No. 698, a decision of Lafreniere, P. There does not appear to be any good reason to depart from that practice in this case. The usual device by which such motions are dealt with is to adjourn them pending completion of the status review, to be heard if the claim is not dismissed for delay.
[5] The issue in a status review is the failure of the plaintiff to prosecute his/her action diligently. The onus is on the plaintiff to justify the continuance of the action. See Multibond Inc. v. Duracoat Powder Manufacturing Inc., [1999] F.C.J. No. 1698 (McGillis J.) at paragraph 14:
| "... on a status review in which the Court has required a plaintiff to show cause under rule 282(2)(a), the only relevant considerations are whether the plaintiff has justified the delay and has proposed a plan for moving the case forward. " |
[6] In this case, the plaintiff has proceeded to judgment against 135 defendants so it can hardly be said that it has not prosecuted its actions. On the other hand, the claims which remain outstanding are rather stale, arising from executions of the Anton Piller order which took place at least 3 years from the date of application for judgment. The plan proposed by the plaintiff is to do that which it has been entitled to do for a number of years now, that is apply for judgment in default.
[7] It would be inappropriate to dismiss a claim in which a series of judgments have been obtained. Those claims can no longer be dismissed, having been reduced to judgment. The only thing which can be done on a status review of a file of this nature is to deal with those claims which have not been reduced to judgment. The three claims in respect of which an application for default judgment is made are the only such claims, according to counsel for the plaintiff. I would not be inclined to allow the actions against these three defendants to proceed, given their staleness. A dismissal of these claims would mean that the interim injunction in force against the defendants would be dissolved and the property which was seized would have to be returned to them. In light of the fact that the defendants have not filed defences, and thus, have not contested the allegation that they infringed the plaintiff"s trade-marks, I would equally not be inclined to return counterfeit goods to them, when on the face of it, those goods only have value as inventory. In the result, an equitable resolution of these claims is the following:
| 1- each claim is continued as a specially managed proceeding pursuant to Rule 382 (2 )(c). |
| 2- default judgment is granted, also pursuant to Rule 382 (2)(c), on the following terms: |
| a) the interim injunction granted against the defendant is made a permanent injunction. |
| b) the claim for damages is dismissed. |
| c) the property seized by plaintiffs and which is in the custody of the solicitors for the plaintiffs is forfeited to the plaintiffs for destruction. |
| d) there will be no order as to costs. |
[8] Judgment will issue separately in the form described above.
"J.D. Denis Pelletier"
Judge
Ottawa, Ontario
January 5, 2000