This Week’s Hearings

The Court has two hearings scheduled for this week.

On Tuesday, in Kraft Canada Inc v Euro Excellence Inc, the Court will deal with a copyright dispute between chocolate bar importers. On Wednesday the Court will consider whether a court should hear an appeal by a party who is in default of a Court order in Dickie v Dickie.

In Kraft Canada Inc v Euro Excellence Inc, the Court will deal with a copyright dispute between chocolate importers. Kraft’s European affiliates, Kraft Foods Belgium and Kraft Foods Schweiz, are the producers of Cote d’Or and Toblerone chocolate bars. Euro-Excellence had been authorized to act as the Canadian distributor, but continued to distribute the brands after the expiry of the contract even though a new exclusive contract had been given to Kraft Canada. Kraft brought an application under the Copyright Act for an injunction requiring Euro-Excellence to stop using the copyrighted artwork (the Cote d’Or elephant and Toblerone bear) and to stop distributing the product with the artwork visible. The injunction was awarded at trial as well as a payment of $300,000 to compensate for profits derived from the infringement.

The Federal Court of Appeal unanimously upheld the injunction (see 2005 FCA 427). However, the Court held that the record did not provide support for the damages the judge had awarded, and referred the question back to trial, requiring the profits from the sale of Cote d’Or and Toblerone could be determined with more precision.

The Court will hear Dickie v Dickie on Wednesday. The respondent, Mr. Dickie, had been ordered to pay spousal and child support to his former wife. Ms. Dickie obtained an order requiring Mr. Dickie to provide an irrevocable letter of credit to secure these obligations as well as to provide security for costs by paying $100,000 to Ms. Dickie’s solicitors. After failing to comply with these orders, Mr. Dickie was found in contempt and sentenced to 45 days in jail. He appealed against the contempt orders.

The Ontario Court of Appeal found that it had jurisdiction to hear Mr. Dickie’s appeal of the contempt order although he had not purged his contempt. It also found that a contempt order could not be issued in this case because it was made to compel the payment of money, which is contrary to Rule 60.11(1) of the Rules of Civil Procedure, RRO 1990, Reg 194. The majority also found that the order requiring provision of an irrevocable letter of credit was also an order for the payment of money and could not be enforced by a contempt order (see (2006) 78 OR (3d) 1).

Justice Laskin dissented, holding that the Mr. Dickie has shown “a flagrant and systematic disregard for orders of the court” and that the Court should adjourn the hearing of Mr. Dickie’s appeal until he complied with the contempt order. He agreed that the order requiring a letter of credit to secure child support obligations constituted an order for the payment of money and was not enforceable by contempt. However, the order to provide security for costs, since it was paid to Ms. Dickie’s solicitors in trust, was not subject to Rule 60.11(1).

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