Boaden Catering Limited v. Real Food for Real Kids Inc., 2017 ONCA 248

The Ontario Court of Appeal (ONCA) dismissed the Appellant's appeal from a summary judgment dismissing its action and from an order dismissing the Appellant's motion to strike certain paragraphs of the Respondents' statement of defence. The ONCA also dismissed leave to appeal the costs award.

These proceedings arose out of a dispute over website domain names. The parties are competitors in the market for healthy children's catering in the Greater Toronto Area. The Respondent had previously submitted complaints to the Internet Corporation for Assigned Names and Numbers (ICANN) and the Canadian Internet Registration Authority (CIRA) concerning the Appellant's registration of a .com domain name and three .ca domain names. Both arbitrators found that the Appellant had no legitimate interest in the disputed .com or .ca domain names respectively, and that the domain names had been registered in bad faith.

The Appellant subsequently commenced this action for a variety of relief, including a declaration that the Appellant is the lawful owner of the disputed domain names, and damages for passing off, defamation and theft of trade secrets. The Appellant sought an adjournment of the summary judgment motion for the purpose of cross-examining the Respondents' deponents. The adjournment was refused and the action was summarily dismissed with costs awarded in favour of the respondents in the sum of $98,959.82.

On appeal, the ONCA rejected all grounds of appeal, including the Appellant's argument that it was denied procedural fairness when the motions judge wrongly refused to adjourn the summary judgment motion. For one, the ONCA found that, consistent with the pattern of delay by the Appellant in the litigation, the Appellant did not act reasonably to crossexamine the Respondents' deponents. Also the fact that the Appellant brought a motion to strike paragraphs of the statement of defence did not warrant an adjournment of the summary judgment motion.