Penthouse International Ltd. v. 163564 Canada Inc.
T-1479-93
Teitelbaum J.
21/7/95
13 pp.
Defendants charged with contempt of court for not delivering up to plaintiff or destroying under oath all signs offending injunction issued October 31, 1994-Plaintiff having exclusive rights in "Penthouse" trade marks-Defendants ordered by Associate Senior Prothonotary (A.S.P.) to show cause why should not be condemned for contempt of judgment of Teitelbaum J. dated October 31, 1994-Whether plaintiff proved beyond reasonable doubt defendants in contempt of court-Private investigator called by plaintiff-Took six pictures of defendants' premises, two before issuance of judgment dated October 31, 1994, four others on March 1, 1995-Verbal application of non-suit not available in contempt of court proceedings-Plaintiff must prove beyond reasonable doubt failure of defendant to fulfil terms of injunction-Two-stage process under R. 355(4)-First stage application for order alleged contemnor show cause why contempt should not be found-Party making application must establish prima facie case of contempt-A.S.P. satisfied plaintiff established, by affidavit evidence, prima facie case-At second stage, guilt of alleged contemnor must be established to criminal law standard of proof beyond reasonable doubt-Mens rea, intention or good faith not consideration in determining issue of contempt of court-Defendants having "destroyed" window sign by removing same even if defendant Savard has failed to file affidavit to that effect-By taping over, entirely or partially, "Penthouse" signs, defendants have not "destroyed" said signs-Underlying meaning of word "destroy" to demolish, make useless or spoil so that restoration impossible-Defendants have failed to deliver up, destroy signs in issue, therefore in contempt of judgment of October 31, 1994-Good faith, lack of mens rea consideration in determining penalty-Defendants did not purposely attempt to contravene judgment dated October 31, 1994-Defendant 163564 Canada Inc. ordered to pay sum of $250 as penalty-Defendant Savard ordered to pay sum of $750 as penalty-Defendants, alone or together, shall pay to plaintiff sum of $6,907.60 as plaintiff's costs and disbursements-Federal Court Rules, C.R.C., c. 663, R. 355(4).