Date : 20000905
Docket : A-26-00
(T-3049-92)
CORAM : DÉCARY J.A.
LINDEN J.A.
McDONALD J.A.
BETWEEN :
THE CANADIAN OFFICE DEPOT INC., OD INTERNATIONAL, INC.,
OFFICE DEPOT, INC. and DAVID FUENTE
Appellants
(Defendants and Plaintiffs
by Counterclaim)
- and -
THE BUSINESS DEPOT LTD.
Respondent
(Plaintiff and Defendant
by Counterclaim)
- and -
JACK BINGLEMAN, STAPLES, INC., and
THOMAS G. STEMBERG
Respondents
(Defendants by Counterclaim)
Heard at Ottawa (Ontario) on Tuesday, September 5, 2000.
Judgment delivered from the Bench on Tuesday, September 5, 2000.
REASONS FOR JUDGMENT OF
THE COURT DELIVERED BY: DÉCARY J.A.
Date : 20000905
Docket : A-26-00
(T-3049-92)
CORAM : DÉCARY J.A.
LINDEN J.A.
McDONALD J.A.
BETWEEN :
THE CANADIAN OFFICE DEPOT INC., OD INTERNATIONAL, INC.,
OFFICE DEPOT, INC. and DAVID FUENTE
Appellants
(Defendants and Plaintiffs
by Counterclaim)
- and -
THE BUSINESS DEPOT LTD.
Respondent
(Plaintiff and Defendant
by Counterclaim)
- and -
JACK BINGLEMAN, STAPLES, INC., and
THOMAS G. STEMBERG
Respondents
(Defendants by Counterclaim)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa (Ontario)
on Tuesday, September 5, 2000)
DÉCARY J.A.
[1] In 1993, Business Depot started an action against Office Depot. An interlocutory injunction was granted quia timet to Business Depot on May 17, 1993 by Rouleau J., whose decision is reported at (1993), 63 F.T.R. 271.
[2] On April 7, 1999, Office Depot filed a motion to dissolve the interlocutory injunction alleging delay and a significant change in circumstances.
[3] On January 7, 2000, the motion to dissolve was denied by Dubé J. This appeal is with respect to the latter decision. Since the filing of the appeal, a trial date in the Trial Division has been fixed by a prothonotary. Thirty days have been set aside for the hearing of the action, starting May 30, 2001.
[4] It is trite law that the dissolution of an interlocutory injunction is an extraordinary remedy. And while there appears to be few precedents involving appeals of decisions granting or refusing to grant a motion to dissolve an interlocutory injunction, it is fair to say that a court of appeal will be normally reluctant to intervene in such appeals at least as much as it is reluctant to intervene in decisions granting or refusing to grant an interlocutory injunction.
[5] In the case at bar, we have been shown no reviewable error in the reasons for judgment of Mr. Justice Dubé. He had ample grounds to conclude that the delay in the circumstances was not of the kind that should invite the dissolution of the injunction; there was, indeed, evidence that Business Depot never did consider the interlocutory injunction as final and that there was communication between the two parties to arrive at a settlement with the mutual understanding that delays due to negotiations would not be prejudicial to Business Depot.
[6] Further, Dubé J. correctly decided that Office Depot, as a matter of law, had to establish, on the balance of probabilities, that the true facts are now substantially different from the facts present when the interlocutory injunction was granted, or that the facts have changed so dramatically that the factual underpinnings of the earlier order are simply no longer valid. That burden is a particularly heavy one. The Motions Judge was not satisfied that it had been met, and we fail to see any reviewable error in the way he exercised his discretion.
[7] We wish to add that in the circumstances of this case, this Court would in any event have been very much reluctant to interfere with an interlocutory injunction that has been enduring for seven years, when the case is set for trial in eight months and is to last for some thirty days.
[8] The appeal will be dismissed with costs.
"Robert Décary"
J.A.