(Disponible uniquement en anglais)
Webb J.A., Monaghan J.A., Goyette J.A.
Ashley Burk (Burk Law) for the Appellants
Michael Chevalier (Pinto Legal) for the Respondent
2474234 Ontario Inc. v. Dunn's Famous International Holdings Inc., 2024 FCA 161 (CanLII)
October 4, 2024
The Estate of the Late Moishe Smith and 2474234 Ontario Inc. appeal the decision of the Federal Court dismissing their motion to set aside a January 21, 2021 default judgment in favour of the Respondent, Dunn’s Famous International Holdings Inc.
Decision
The Appeal is dismissed, without costs.
Discussion
The background to the dispute is that the Respondent brought a trademark infringement action against a number of Defendants, including the two Appellants. In November 2020, the Respondent brought an ex parte motion for default judgment, based on the failure by the Appellants to file a defence. The Federal Court granted default judgment, ordering damages and interest.
The Appellants brought a motion to set aside the default judgment. The Appellants alleged that the Federal Court made a palpable and overriding error in failing to interpret the evidence as establishing that the Appellants had reasonably believed the matter was resolved and they had no need to file a Statement of Defence. The Federal Court of Appeal disagreed with this allegation and dismissed the appeal.
However, the Federal Court of Appeal was troubled with evidentiary inconsistencies before it and before the Federal Court with respect to the amount of gross revenues upon which the damage award was based. Ultimately, the Court of Appeal concluded that since the appeal before it was only whether to set aside the default judgment, and not an appeal of the default judgment itself, it was unable to make a ruling which would affect the quantum.
The Federal Court of Appeal declined to award the successful Respondent its costs.
Prepared by Peter W. Choe, Portmanteau Law