Fraser v. Janes Family Foods Ltd. et al., 2011 FC 569

• Judge: Rennie, J.
• Court: Federal Court (Canada)
• Case Date: March 02, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 569;(2011), 390 F.T.R. 82 (FC)

Fraser v. Janes Family Foods Ltd. (2011), 390 F.T.R. 82 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JN.014

Alfred T. Fraser, Paul J. Fraser, and Fraser Sea Foods Corporation (plaintiffs) v. Janes Family Foods Ltd.; Trident Seafoods Corporation; Conagra Foods, Inc.; Conagra Foods Canada Inc./Aliments Conagra Canada Inc.; Bluewater Seafoods Inc.; Gorton's Inc.; Gorton's Fresh Seafood, Llc; Roche Bros. Inc.; Roche Bros. Supermarkets, Inc.; Roche Bros. Supermarkets, LLC; High Liner Foods Incorporated; Comeau's Sea Foods Limited; Pinnacle Seafoods Ltd.; Pinnacle Foods Canada Corporation; Pinnacle Foods Group LLC; Sobeys Inc.; Sobeys Capital Incorporated; Loblaws Inc. (defendants)

(T-1583-09; 2011 FC 569)

Indexed As: Fraser v. Janes Family Foods Ltd. et al.

Federal Court

Rennie, J.

May 19, 2011.

Summary:

The plaintiffs brought a patent and trademark infringement suit against the defendants. The defendants moved for security for costs. The motion was bifurcated between liability and quantum.

A Prothonotary of the Federal Court, in a decision not reported in this series of reports, directed that the plaintiffs post security for costs. The plaintiffs appealed.

The Federal Court dismissed the appeal.

Courts - Topic 2583

Registrars and prothonotaries - Appeals from - Scope of review (incl. standard of review) - [See all Practice - Topic 8112 ].

Practice - Topic 8112

Costs - Security for costs - General principles - Where plaintiff insolvent or impecunious - The plaintiffs brought a patent and trademark infringement suit against the defendants - A Prothonotary ordered that the plaintiffs post security for costs - The crux of the matter before the Prothonotary was whether or not the plaintiffs were impecunious and, in consequence, under Federal Court Rule 417, should be granted relief from the requirement that they post security for costs - The Prothonotary ruled that the plaintiffs were not impecunious - The plaintiffs appealed, asserting that they could not afford to post security for costs - They contended that the effect of the order was vital in itself to the final issue in the case, as it would require the plaintiffs to discontinue the action - The Federal Court dismissed the appeal - It was the question that was before the Prothonotary that determined whether or not it was an issue vital to the final outcome of the case - An order directing the posting of security for costs could not be vital to the final outcome of the case depending on whether a party could, or could not, meet the payment - It was the question or issue that was the relevant determiner of whether an issue was vital to the final outcome - The question before the Prothonotary was whether the plaintiffs were impecunious, not whether his finding them impecunious or not impecunious would, as a matter of fact, effectively end or not end their claim and the litigation - See paragraphs 15 and 16.

Practice - Topic 8112

Costs - Security for costs - General principles - Where plaintiff insolvent or impecunious - The plaintiffs brought a patent and trademark infringement suit against the defendants - A Prothonotary ordered that the plaintiffs post security for costs - The crux of the matter before the Prothonotary was whether or not the plaintiffs were impecunious and, in consequence, under Federal Court Rule 417, should be granted relief from the requirement that they post security for costs - The Prothonotary ruled that the plaintiffs were not impecunious - The plaintiffs appealed, asserting that the Prothonotary erred by holding them to a standard of proof in excess of the balance of probabilities - The Federal Court dismissed the appeal - The plaintiffs' argument confused two distinct concepts: that of evidentiary burden and that of the legal burden - In this case, the plaintiffs had the evidentiary burden of proving that they were impecunious - The degree to which the facts, indicia or criteria of impecuniosity had to be established, the legal burden however, was that of the balance of probabilities - Because the plaintiffs did not prove all the necessary facts to establish impecuniosity on a balance of probabilities, the Prothonotary found that the evidentiary burden had not been discharged - In so doing, the Prothonotary did not depart from the legal burden of proof on the balance of probabilities when he found that the plaintiffs had not led evidence as to their financial situation with "robust particularity" - Further, the Prothonotary looked not only at what the plaintiffs led as evidence of impecuniosity, but also at what they did not lead - It was consistent with the legal standard of proof on a balance of probabilities to require a broad scope of evidence on a number of points with respect to the financial position of the plaintiffs in order to discharge the evidentiary burden of proof - The Prothonotary did not err in stating that proof of impecuniosity had to be done with robust particularity - See paragraphs 18 to 30.

Practice - Topic 8112

Costs - Security for costs - General principles - Where plaintiff insolvent or impecunious - The plaintiffs brought a patent and trademark infringement suit against the defendants - A Prothonotary ordered that the plaintiffs post security for costs - The crux of the matter before the Prothonotary was whether or not the plaintiffs were impecunious and, in consequence, under Federal Court Rule 417, should be granted relief from the requirement that they post security for costs - The Prothonotary ruled that the plaintiffs were not impecunious - The plaintiffs appealed, asserting that the Prothonotary misapprehended facts or evidence - The Federal Court dismissed the application - The Prothonotary's findings on the grounds of impecuniosity were well founded in the record - These included discrepancies in the financial statements of the plaintiffs, and as noted, material gaps in the plaintiffs' explanation of their financial position - The Prothonotary concluded that while the financial health of the plaintiffs was not strong, there were unanswered questions as to the disposition and current value of certain corporate assets - These were all reasonable observations based on the evidence - No particular finding of fact was urged as incorrect nor was the court's attention directed to facts or aspects of the financial statements that were overlooked or misunderstood - See paragraphs 31 and 32.

Practice - Topic 8124

Costs - Security for costs - Application - Onus or burden of proof - [See second Practice - Topic 8112 ].

Cases Noticed:

Merck & Co. et al. v. Apotex Inc., [2004] 2 F.C.R. 459; 315 N.R. 175; 2003 FCA 488, refd to. [para. 11].

Apotex Inc. v. Bristol-Myers Squibb Co. et al. (2011), 414 N.R. 162; 2011 FCA 34, refd to. [para. 12].

Nicholas (Trevor) Construction Co. v. Canada (Minister for Public Works), [2006] F.T.R. Uned. 410; 2006 FC 687, refd to. [para. 15].

Apotex Inc. v. Sanofi-Aventis et al., [2010] F.T.R. Uned. 887; 2010 FC 1209, refd to. [para. 16].

Sanofi-Aventis Canada Inc. et al. v. Novopharm Ltd. (2010), 377 F.T.R. 293; 2010 FC 1210, refd to. [para. 16].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 18].

Heli Tech Services (Canada) Ltd. et al. v. Weyerhaeuser Co. et al. (2006), 300 F.T.R. 192; 56 C.P.R.(4th) 432 (T.D.), refd to. [para. 19].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 2004 SCC 27, refd to. [para. 23].

B., Re, [2008] N.R. Uned. 232; [2008] UKHL 35, refd to. [para. 26].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sydney N., and Fuerst, Michelle K., Sopinka, Lederman and Bryant: The Law of Evidence in Canada (3rd Ed. 2009), p. 90, para. 3.11 [para. 23].

Counsel:

Samuel Kazen, for the plaintiffs;

Daniela Bassan, for the defendants, Highliner Foods, Comeau's Seafoods;

R. Scott Mackendrick, for the defendant, Loblaws;

Marek Nitoslawski, for the defendants, Gorton's Inc., Broche Bros., Blue Water Seafoods;

Arthur Renaud, for the defendants, Pinnacle, Sobeys.

Solicitors of Record:

Imagine, Intellectual Property Law, Professional Corporation, Toronto, Ontario, for the plaintiffs;

Gowling Lafleur Henderson LLP, Ottawa, Ontario, for the defendants, Janes Family Foods Ltd., Trident Seafoods Corporation, Conagra Foods, Inc., Conagra Foods Canada Inc./Aliments Conagra Canada Inc., Pinnacle Seafoods Ltd., Pinnacle Foods Canada Corporation, Pinnacle Foods Group LLC, Sobeys Inc., Sobeys Capital Incorporated;

Fasken Martineau Dumoulin LLP, Montreal, Quebec, for the defendants, Bluewater Seafoods Inc., Gorton's Inc., Gorton's Fresh Seafood, LLC, Roche Bros. Inc., Roche Bros. Supermarkets, Inc., Roche Bros. Supermarkets, LLC;

Stewart McKelvey Stirling Scales, Halifax, Nova Scotia, for the defendants, High Liner Foods Incorporated, Comeau's Sea Foods Limited;

Cameron MacKendrick LLP, Toronto, Ontario, for the defendant, Loblaws Inc.

This appeal was heard on March 2, 2011, at Toronto, Ontario, by Rennie, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on May 19, 2011.