Background
Pro Swing is an American company that sells golf equipment under the "trident" trade-mark. Elta Golf is an Ontario company that sells golf equipment that includes products with a trade-mark similar to that of the "trident".
Pro Swing sued for trade-mark infringement in Ohio. A settlement was reached which ordered Elta Golf to refrain from selling any products with the trident logo.
In 2002, Pro Swing filed to an Ohio court for contempt of court for Elta's breach of the settlement. The court granted the order. Pro Swing then filed in the Ontario Superior Court of Justice for enforcement of the order.
The Superior Court of Justice is a superior court in Ontario. The Court sits in 52 locations across the province, including 17 Family Court locations, and consists of over 300 federally appointed judges.
The motions judge found that the non-monetary order was valid, but found certain parts duplicative and had them severed from the order.
On appeal to the Court of Appeal for Ontario, the court found the order was unenforceable due to ambiguity in the order regarding its scope of application.
The Court of Appeal for Ontario is an appellate court in Ontario that is based at historic Osgoode Hall in downtown Toronto.
Opinion of the Court
Justice Deschamps wrote the majority opinion. She ordered the appeal dismissed.
The old rule for foreign judgments required that they be final, conclusive, and for a monetary amount. Deschamps found this rule to be outdated and stated that a new rule for non-monetary orders based on comity was needed.
She proposed that non-monetary judgments should be enforced when
- judgment is rendered by a court of competent jurisdiction
- the judgment is final
- the nature of the judgment is such that comity requires enforcements.
On the current facts she found the order unenforceable. The contempt order is quasi-criminal which should never be enforced. This public law element eclipses any other private law element. She further advised in obiter that courts should ensure there will be no conflict once the order is rendered, and should not allow punishments that are not available under the foreign jurisdiction.
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Newfoundland and Labrador v AbitibiBowater Inc, 2012 SCC 67 is a ruling by the Supreme Court of Canada dealing with whether an obligation incurred under regulatory action constitutes a claim under the Companies' Creditors Arrangement Act, thus becoming subject to a stay of proceedings.
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Penalties in English law are contractual terms which are not enforceable in the courts because of their penal character. Since at least 1720 it has been accepted as a matter of English contract law that if a provision in a contract constitutes a penalty, then that provision is unenforceable by the parties. However, the test for what constitutes a penalty has evolved over time. The Supreme Court most recently restated the law in relation to contractual penalties in the co-joined appeals of Cavendish Square Holding BV v Talal El Makdessi, and ParkingEye Ltd v Beavis.
