Federal Court Decisions

     T-3016-92

        

B E T W E E N :

     MILLIKEN & COMPANY and

     MILLIKEN INDUSTRIES OF CANADA LTD.

     Plaintiffs

     - and -

INTERFACE FLOORING SYSTEMS (CANADA) INC.

     Defendant

AND BY WAY OF COUNTERCLAIM :

     INTERFACE FLOORING SYSTEMS (CANADA) INC.

     Plaintiff by Counterclaim

     - and -

     MILLIKEN & COMPANY and

     MILLIKEN INDUSTRIES OF CANADA LTD.

     Defendants by Counterclaim

     REASONS FOR ORDER

LUTFY J:

     In my opinion, it is not expedient to grant the first stage of this Rule 474 motion to determine the following question of law:

Can the injunctive relief aspects of Interface's counterclaim form the basis of a separate cause of action or are the injunctive relief aspects of Interface's counterclaim also barred by section 41 of the Copyright Act?

     On December 2, 1996, Madam Justice Tremblay-Lamer disposed of a motion for summary judgment by concluding in part that the defendants' claim for injunctive relief disclosed a genuine issue for trial. There was no appeal from her decision.

     On March 21, 1997, the Associate Chief Justice set down the trial for five days to begin on November 17, 1997.

     The determination of the question of law prior to trial would not be consistent with Madam Justice Tremblay-Lamer's disposition of the motion for summary judgment concerning the issue of injunctive relief. Nor would it dispose of the plaintiffs' claim. The trial would still be necessary. The judgment determining the question of law would be subject to appeal as would the judgment disposing of the plaintiffs' claim at trial. I have not been convinced that the immediate adjudication of the question of law would result in any significant saving of time at the trial. In these circumstances and at this stage of the proceedings, I can see no efficiency in the management of this action in allowing the determination of the question of law to proceed. On the contrary, I am of the view that proceeding at this time pursuant to Rule 474, as suggested by the plaintiffs, runs the serious risk of exacerbating the tasks of the parties and the Court.

     For these reasons, the plaintiffs' motion is dismissed with costs.

                         "Allan Lutfy"

                         Judge

Ottawa, Ontario

June 19, 1997