Biologische Heilmittel Heel GmbH v. Acti-Forme Ltd.
T-2156-95
Richard J.
9/11/95
7 pp.
Motion pursuant to Federal Court Act, s. 50 to stay action pending final disposition of action in Ontario Court of Justice (General Division)-S. 50(1)(a) giving Court discretion to stay proceedings on ground claim being proceeded with in another court or jurisdiction; or (b) where for any other reason in interest of justice-Federal Court action, motion for interlocutory injunction based upon allegations of trademark infringement-Ontario Court action and motion for interlocutory injunction based upon allegations of breach of contract-Defendants arguing essence of claims same, Ontario action commenced first, plaintiffs' conduct oppressive-Motion dismissed-Stay only ordered in clearest cases: Varnam v. Canada (Minister of National Health & Welfare), [1987] 3 F.C. 185 (T.D.)-"That claim is being proceeded with in another court or jurisdiction" meaning same claim or identical claim: Fruit of the Loom Inc. v. Chateau Lingerie Mfg. Co. Ltd. (1984), 79 C.P.R. (2d) 274 (F.C.T.D.)-No abuse of process in pursuing claim for breach of contract, issue over which Federal Court having no jurisdiction, in Ontario courts, and pursuing claim for trademark infringement and passing off, issues over which Federal Court having jurisdiction, in Federal Court-Actions not identical-Action in this Court separate cause of action from action in Ontario courts, even though factual background similar-Act permitting litigant to choose to assert cause of action for trademark infringement in either Federal Court or superior court-That choosing to assert cause of action in this Court rather than as additional claim in breach of contract suit against same defendant in Ontario courts not justifying grant of stay of proceeding-Refusal to grant stay neither prejudicing defendants nor amounting to abuse of process-Federal Court Act, R.S.C., 1985, c. F-7, s. 50.