Target Event Production Ltd. v. Cheung et al., (2010) 403 N.R. 331 (FCA)

• Judge: Sharlow, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 04, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 403 N.R. 331 (FCA);2010 FCA 149

Target Event Production Ltd. v. Cheung (2010), 403 N.R. 331 (FCA)

MLB headnote and full text

Temp. Cite: [2010] N.R. TBEd. JN.033

Paul Cheung and Lions Communications Inc. (appellants) v. Target Event Production Ltd. (respondent)

(A-50-10; 2010 FCA 149)

Indexed As: Target Event Production Ltd. v. Cheung et al.

Federal Court of Appeal

Sharlow, J.A.

June 4, 2010.

Summary:

The plaintiff ran a night market (Richmond Night Market) at various locations in Richmond, B.C., from 2000 to 2007. When the lease on the location used from 2004 to 2007 (the property) expired in 2007, the plaintiff decided not to renew it because of the increased rent. The plaintiff did not find a new location and did not operate a market in 2008 and 2009. The defendants took advantage of the business opportunity vacated by the plaintiff. They leased the property and opened a night market (Lions' market). The plaintiff brought an action, alleging copyright infringement and passing off under s. 7(b) of the Trade-marks Act in connection with the defendants' operation of the Lions' market.

The Federal Court, in a decision reported at 360 F.T.R. 54, held that there had been copyright infringement and passing off in connection with the defendants' operation of the Lions' market. The court awarded damages of $15,000, issued a declaration and ordered injunctive relief. The defendants appealed. The plaintiff cross-appealed. The defendants moved for a stay of the judgment pending appeal.

The Federal Court of Appeal, per Sharlow, J.A., granted the stay, subject to two conditions: (1) that the $15,000 paid into court would be retained pending the disposition of the appeal and cross-appeal; and (2) that the defendants use their best efforts to ensure that the steps required to have this matter made ready for hearing were completed expeditiously so that the hearing could be set down at the earliest available date.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to a stay - The plaintiff brought an action, seeking damages and other relief against the defendants (Lions Communications Inc. and its owner Cheung) for copyright infringement and passing off in relation to the plaintiff's business, the Richmond Night Market, which operated from 2000 to 2007 - The plaintiff's action was partially successful - The defendants appealed and the plaintiff cross-appealed - The defendants moved for a stay of the judgment pending the appeal - The most pressing concern was the trial judge's award of solicitor and client costs, for which the plaintiff was claiming approximately $265,000 - The defendants asserted that (a) Lions would be rendered insolvent if required to pay the $265,000 costs pending the outcome of the appeal, (b) Cheung had no means of personally paying that amount, and (c) the costs assessment proceedings would require the expenditure of considerable resources in terms of time and legal expenses - The Federal Court of Appeal, per Sharlow, J.A., granted the stay - The plaintiff had conceded the existence of a serious issue on appeal - Lions' financial position was such that it was likely to suffer irreparable harm if the stay was not granted - Payment of the costs would threaten Lions' ability to continue its business - Finally, the balance of convenience favoured the defendants.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Practice - Topic 8952 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 14].

Counsel:

Howard P. Knopf and Katherine Ducey, for the appellants;

Paul Smith, for the respondent.

Solicitors of Record:

Macera & Jarzyna LLP, Ottawa, Ontario, and Campbell, Froh, May and Rice, LLP, Richmond, B.C., for the appellants;

Smiths IP, Vancouver, B.C., for the respondent.

This motion was heard by teleconference at Ottawa, Ontario, and Richmond and Vancouver, British Columbia, on June 4, 2010, by Sharlow, J.A., of the Federal Court of Appeal, who delivered the following order at Ottawa, Ontario, on the same date.