Kitasoo First Nation v. Urban Distillers Inc.

Kitasoo First Nation v. Urban Distillers Inc.
Court (s) Database
Federal Court of Appeal Decisions
Date
2015-10-28
Neutral citation
2015 FCA 233
File numbers
A-436-14
Decision Content
Date: 20151028
Docket: A-436-14
Citation: 2015 FCA 233
CORAM:
GAUTHIER J.A.
WEBB J.A.
GLEASON J.A.
BETWEEN:
KITASOO BAND COUNCIL
Appellant
and
URBAN DISTILLERS INC.
Respondent
Heard at Vancouver, British Columbia, on October 28, 2015.
Judgment delivered from the Bench at Vancouver, British Columbia, on October 28, 2015.
REASONS FOR JUDGMENT OF THE COURT BY:
GAUTHIER J.A.
Date: 20151028
Docket: A-436-14
Citation: 2015 FCA 233
CORAM:
GAUTHIER J.A.
WEBB J.A.
GLEASON J.A.
BETWEEN:
KITASOO BAND COUNCIL
Appellant
and
URBAN DISTILLERS INC.
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on October 28, 2015).
GAUTHIER J.A.
[1] This is an appeal by the Kitasoo Band Council from a decision of the Federal Court on a summary judgment motion brought by the appellant and by the City of Terrace in the context of their action for infringement of their official marks.
[2] We have not been persuaded that the judge made a palpable and overriding error in finding that the applicants had failed to establish that either of them had used the official marks as of the relevant dates. (sub-paragraph 9(1)(n)(i) of the Trade-marks Act, R.S.C. 1985, c.T-13). Thus, their marks could not be enforced against the respondent.
[3] In light of the way in which the applicants cast their motion for summary judgment seeking a declaration of enforceability of their marks and a declaration of infringement against the respondent, we do not accept the appellant’s argument that the judge had no jurisdiction to grant judgment, effectively dismissing their action.
[4] However, in the absence of a summary judgment motion in respect of the Counterclaim of the respondent, the judge erred in granting the Counterclaim.
[5] Thus, the appeal will be granted in part without costs. The judgment of the Federal Court will be amended to read as follows:
The action is dismissed with costs.
"Johanne Gauthier"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Docket:
A-436-14
(APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE MARTINEAU OF THE FEDERAL COURT, DATED SEPTEMBER 2, 2014, DOCKET NO. T-700-13.)
STYLE OF CAUSE:
KITASOO BAND COUNCIL v. URBAN DISTILLERS INC.
PLACE OF HEARING:
Vancouver, British Columbia
DATE OF HEARING:
October 28, 2015
REASONS FOR JUDGMENT OF THE COURT BY:
GAUTHIER J.A.
WEBB J.A.
GLEASON J.A.
DELIVERED FROM THE BENCH BY:
GAUTHIER J.A.
APPEARANCES:
Bruce M. Green
For The Appellant
James J. D. Wagner
For The Respondent
SOLICITORS OF RECORD:
Oyen Wiggs Green & Mutala LLP
Barristers and Solicitors
Vancouver, British Columbia
For The Appellant
Silvergate Law
Barristers and Solicitors
Vancouver, British Columbia
For The Respondent