Date: 19980421
Docket: T-2685-95
BETWEEN:
COCA-COLA LTD. and COCA-COLA BOTTLING LTD.
Plaintiffs
- and -
MUSADIQ PARDHAN c.o.b. as UNIVERSAL EXPORTERS,
1106729 ONTARIO LIMITED c.o.b. as UNIVERSAL EXPORTERS
and JOHN DOE and JANE DOE and
OTHER PERSONS UNKNOWN TO THE PLAINTIFFS
WHO OFFER FOR SALE, SELL, EXPORT, MANUFACTURE,
ADVERTISE, OR DEAL IN TRANSSHIPPED COCA-COLA PRODUCTS
Defendants
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
Monday, April 20, 1998)
HUGESSEN, J.:
[1] The motion before me seeks a number of things, but was only proceeded with with respect to the first paragraph thereof.
[2] The relief sought in paragraphs 2 to 9 inclusive, was adjourned to permit counsel for the plaintiffs to cross-examine on the affidavit produced on behalf of the moving party, the defendant, and/or to produce affidavit evidence of its own. That adjournment was sinie die.
[3] Paragraph 1, which is all that remains in issue today seeks an order:
| ... confirming that the order of Mr. Justice Wetston dated November 27, 1997 striking the statement of claim herein dissolved the interlocutory injunction issued by order of Mr. Justice MacKay dated January 8, 1996. |
[4] As that relief indicates, at the time that Mr. Justice Wetston issued his order, there was outstanding and in effect an order of interlocutory injunction which had been issued by Mr. Justice MacKay. The motion before Mr. Justice Wetston sought various reliefs, including relief specifically directed against the outstanding interlocutory injunction. In his reasons issued in support of his order, Mr. Justice Wetston started off by saying:
| By motion, the defendants have requested four different forms of relief. However, as I indicated during the hearing, in my opinion, it is only appropriate to consider the defendants' motion to strike certain paragraphs of the statement of claim under Rule 419 of the Federal Court Rules. In this regard, I shall not deal with the defendants' request to rescind or vary the granting of an interlocutory injunction against the defendants, ... |
| [emphasis added] |
[5] At the conclusion of his reasons, Mr. Justice Wetston said as follows:
| During the hearing the parties agreed that if the Court determined that the above paragraphs should be struck, those paragraphs would constitute the core of the action. Therefore, it is plain and obvious that the action cannot succeed. As such, the entire statement of claim shall be struck, without leave to amend. |
[6] The order which was entered as a consequence of those reasons is extremely brief, and simply reads:
| The motion is allowed in part. Costs of this motion to the Defendants. |
[7] The argument presented by the defendants today is that the necessary consequence of the striking out of the statement of claim is that the interlocutory injunction would automatically be dissolved.
[8] The question is one of first impression. Both counsel agree that there is no known Canadian authority to deal with the matter. There is a brief reference in Halsbury's Laws of England1 to the effect that the dismissal of an action carries automatically with it the dissolution of any outstanding interlocutory injunction. That is clearly the case, and I say with respect that, I think that the statement of the law found in Halsbury's is a correct one.
[9] However, the point that I have to deal with is rather narrower than that. It may be noted that, both in his order and in his reasons, it is quite clear that Mr. Justice Wetston did not dismiss the action. It is equally clear, of course, that he might have done so2. It is also clear, in my view, that an application to have the action dismissed might now be successful since there is no subsisting statement of claim to support it. But the terms of the order itself are absolutely crystal clear: the statement of claim is struck; costs of the motion are given; the action itself was left in being; no costs of the action were awarded as would be a normal incident of its dismissal. It follows in my view, that, perhaps unfortunately, the effect of Mr. Justice Wetston's order was not to dissolve the interlocutory injunction. Therefore it has remained in effect until the present time. Accordingly, the motion or that part that was before me today will be dismissed with costs.
"James K. Hugessen"
Judge
Toronto, Ontario
April 21, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2685-95
| STYLE OF CAUSE: COCA-COLA LTD., ET AL. |
- and -
| MUSADIQ PARDHAN, ET AL. |
DATE OF HEARING: APRIL 20, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HUGESSEN, J.
DATED: APRIL 21, 1998
APPEARANCES:
Mr. Chris Pibus
Mr. James Buchan
For the Plaintiffs
Mr. Ronald E. Dimock
Mr. David M. Reive
For the Defendants
SOLICITORS OF RECORD: Growling, Strathy & Henderson
Barristers & Solicitors
4900 Commerce Court West Street
Toronto, Ontario
M5L 1J3
For the Plaintiffs
Chauhan & Associates
Hong Kong Bank Centre
309 - 330 Highway No. 7, E.
Richmond Hill, Ontario
L4B 3P8
For the Defendants
FEDERAL COURT OF CANADA
Date: 19980421
Docket: T-2685-95
Between:
| COCA-COLA LTD., ET AL. |
Plaintiffs
- and -
| MUSADIQ PARDHAN ET AL. |
Defendants
REASONS FOR ORDER
__________________
1 Halsbury's Laws of England, (4th ed.) Vol. 24, p 543 para 1024
2 The concluding words of rule 419(1) are ..."and may order the action to be stayed or dismissed or judgment to be entered accordingly."