Yves Gastebled (Plaintiff)
v.
Joseph Stuyck and Paul Malhame (Defendants)
Trial Division, Walsh J.—Montreal, October 1;
Ottawa, November 5, 1973.
Trade marks—Passing-off—Damages—No actual dam-
age—Sufficiency of general damages—Referee's award—
Appeal.
Defendants were restrained from operating a restaurant in
Montreal under the name "Le Petit Navire" near plaintiff's
restaurant "Le Petit Havre" and $300 damages were award
ed by a referee, no actual damage having been proved.
Held, on appeal of the referee's report, the referee's
award was adequate.
REVIEW re damages.
COUNSEL:
Pierre Lamontagne for plaintiff.
Robert Loulou for defendants.
SOLICITORS:
Laing, Weldon and Courtois & Co., Mon-
treal, for plaintiff.
R. Loulou, Montreal, for defendants.
WALSH J.—This matter came before me by
way of an appeal under the provisions of Rule
506 of the Rules of this Court from the report
of the Honourable Deputy Judge Jean St-Ger-
main, acting in his capacity as duly appointed
referee to determine the amount of the damages
to be paid by defendants to plaintiff in accord
ance with the judgment of Mr. Justice Pratte
dated January 26, 1973 granting an injunction
restraining defendants from exploiting at num
bers 427, 429 and 437 St. Vincent Street in
Montreal a restaurant under the name of "Le
Petit Navire" or "Petit Navire". The report of
the referee fixed the nominal damages suffered
by plaintiff in the amount of $300 and the
appeal is based on the contention that the report
should have granted, in addition to nominal
damages, general or exemplary damages and
further that plaintiff's attorney did not, during
his argument before the referee, state that plain
tiff could only claim nominal damages but, on
the contrary, specifically contended that plain
tiff had the right to general and exemplary dam
ages. The decision of the referee does contain
this statement:
[TRANSLATION] On the other hand plaintiff's attorney
declared during his argument that in view of the proof made
his client could only have the right to nominal damages.
This followed a sentence referring to the fact
that the plaintiff when he appeared as a witness
admitted that he could not establish any special
damages resulting from the exploitation by
defendants of the restaurant near his restaurant
known as "Le Petit Havre".
Plaintiff contends that although he could not
establish special damages he is not limited to
nominal damages but is also entitled under the
heading of general damages to exemplary or
punitive damages. There is no doubt that the
jurisprudence permits this although an analysis
of the authorities and cases to which I was
referred confirms that the quantum of such
damages is always a matter for the discretion of
the tribunal. Thus, Fox in his text The Canadian
Law of Trade Marks and Unfair Competition,
3rd ed., states at page 647:
A plaintiff need not prove damages specifically in order to
obtain more than nominal damages.
and again at page 649, referring to the well
known case of Bakhshi Singh h v. Hall 0940] 3
W.W.R. 481, 2 Fox Pat. C. 1 at 7) he states:
Difficulty in assessing damages does not relieve the court
from the duty of assessing them and doing the best it can.
He also refers, at page 650 to the case of
Greenglass v. Brown ((1962) 24 Fox Pat. C. 21)
as authority for the proposition that the court
also has a discretion to award a successful
plaintiff only nominal damages. In . that case,
however, it was established that although there
was a confusion in the names, the two busi
nesses in question were actually non-competi
tive which is not the situation in the present
case.
Plaintiff also made reference to the case
of Underwriters' Survey Bureau Limited v.
Massie & Renwick Limited [1942] Ex.C.R. 1
where the report of a referee awarding the sum
of $5,000 as nominal and exemplary damages
was increased on appeal to the Court which
allowed $10,000 as exemplary damages. That
judgment at page 4 referred to defendant's
infringement of copyright "..., over a period of
years, with deliberation, with persistency, with
premeditated secrecy ...". It also referred at
page 5 to the fact that "... plaintiffs must have
been put to much annoyance, inconvenience
and disturbance, in the conduct of their busi
nesses during the course of the litigation, which
extended over a very lengthy period. This action
the defendant resisted most strenuously at
every step; it never approached the plaintiffs
with a suggestion of any kind of a settlement,
nor did it ever intimate, so far as I know, its
willingness to abandon its infringements". I was
also referred to the case of Standard Industries
Ltd. v. Rosen 14 Fox Pat. C. 173 where it is
stated at page 186: "But the inability to show
exact damages does not bar the plaintiff's
recovery". The judgment allowed $2,000 gener
al damages but then continued to allow an ad
ditional $5,000 by way of exemplary damages
because the judgment of the Court had been
flouted. In the present case the injunction was
complied with and in fact, according to defend
ants' attorney, the offending sign was removed
before the injunction actually took effect and
despite defendants' appeal, which defendants
later desisted from. While it is true that some
four months after the judgment granting the
injunction plaintiff made a motion for the
incarceration of defendants for failing to
comply with it, the judgment on this motion
stated:
[TRANSLATION] As it seems that defendants conformed sub
stantially with the injunction pronounced by the Court and
as the actions which plaintiff complains of could result from
a mistake on their part, a mistake which plaintiff could have
dissipated himself without having recourse to the Court, the
Court dismisses this motion without costs.
With respect to the argument that defendants
were written a letter by plaintiff's attorneys
before they opened their restaurant called "Le
Petit Navire" requiring them to choose another
name for their restaurant, and that their failure
to comply with this shows bad faith on their
part and aggravates the damages as they cannot
claim innocent infringement, it may be said that
this is in no way similar with failing to comply
with an order of the Court or an injunction.
While there is no evidence that they sought legal
advice and were advised to persist in the use of
this name as it would not infringe that used by
plaintiff, they were nevertheless not obliged to
cease doing so merely on plaintiff's demand and
were entitled to continue to do so until
restrained by the Court. They made a valid and
serious contestation of plaintiff's action, as it
was their legal right to do, and although they
were eventually unsuccessful in same, I do not
believe that in this case their infringement was
so self-evident as to find that their use of the
name until restrained from doing so and their
contestation of plaintiff's action constituted an
aggravation of the damages or need result in
substantial exemplary or punitive damages.
Certainly plaintiff, although he could not
establish special damages, was entitled to gener
al damages and the amount of same need not be
so small as to be considered as nominal dam
ages only. On the other hand, the punitive or
exemplary element in such general damages
need not, in my view, be very large in this case.
Plaintiff has accomplished the main purpose of
the litigation, namely obliging defendants to
desist from the use of the offending and con
flicting name. In addition to the damages, the
costs which have already been taxed against
defendants on May 28, 1973 in the amount of
$1,067 are substantial.
It is unfortunate that the learned referee in
making his report referred to an alleged admis
sion which plaintiff's attorney now denies to the
effect that plaintiff could only claim nominal
damages. However, even if this admission was
not made, a reading of the report as a whole
indicates that all relevant evidence was consid
ered before the amount of damages was fixed at
$300. Reference is made to the fact that the
name chosen by defendants was offensive not
only because of the name "Le Petit Navire"
conflicted with plaintiff's restaurant "Le Petit
Havre" but also because defendants' restaurant
was in a building formerly occupied by that of
plaintiff. Reference was also made to the warn
ing letter sent by plaintiff's attorneys to defend
ants before they opened their restaurant requir
ing them to desist from the use of the name. The
report then concludes that taking all this into
consideration:
[TRANSLATION] ... the nominal damages suffered by plain
tiff should be evaluated at $300.
Again the use of the word "nominal" may be
unfortunate if it was intended to use same in
contradistinction to the word "exemplary".
While it might perhaps have been preferable to
refer to the amount awarded as "general dam
ages" which would then include both nominal
and exemplary, I am inclined to think that read
ing the report as a whole it was intended to find
that the sum of $300 was adequate, even though
this might be a "nominal" sum.
Another consideration should, I believe, be
mentioned. The referee was in this case a distin
guished and experienced retired Justice of the
Quebec Court of Appeal and while he was in
this matter acting as a referee rather than as a
Judge, it is well established that an appeal tri
bunal should not interfere with the decision of a
lower tribunal on a question of fact alone and
that if that tribunal has the right to exercise
discretion, the exercise of this discretion should
not be interfered with unless there is a manifest
error in law. Plaintiff's attorney contended that
there was such an error in law in that exemplary
damages should have been awarded in addition
to nominal damages. I believe, however, that the
essential issue before the referee was to evalu
ate the damages resulting from the infringement
by defendants of plaintiff's rights and the
amount of $300 allowed represents a proper
exercise of this discretion even though this
amount was perhaps erroneously referred to as
"nominal". Whether or not sitting in the first
instance on the matter I would have allowed
$300, $500, $1,000 or even $1,500 is not really
in issue. Even if it were found that the learned
referee made an error in law in appraising these
damages, it would still be necessary in order to
set aside his report to conclude that, as a result
of this error, he arrived at a manifestly wrong
and inadequate amount. I do not so find and
hence I dismiss the appeal and confirm the
report of the referee, although under the cir
cumstances I will allow no costs on the dismis
sal of this appeal.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.