In February 2004, plaintiff 9107-6901 Quebec Inc., dba Gagné Marketing ("Gagné") entered into an agreement with defendant Canadian Dealer Products Inc. ("CDP") for the exclusive distribution of its "Easy Care" products in the province of Quebec. One of Gagné's customers is defendant 2970-7528 Quebec Inc., dba Encan Direct H. Grégoire ("H. Grégoire").

In October 2004, H. Grégoire offered to Gagné to purchase its business with CDP and negotiations were undertaken. H. Grégoire complained to CDP and the latter advised Gagné to correct the situation. CDP also advised Gagné that it would pursue business relations with H. Grégoire directly, notwithstanding the exclusivity agreement.

Gagné filed proceedings for a permanent injunction and damages, with a motion for interlocutory injunction to have the provisions of the agreement complied with. It is also asking for a provisional order.

The Court reminds that the provisional order is of the same nature as the interlocutory injunction and must meet the criteria of a clear or serious right, irreparable harm, balance of inconvenients and emergency.

The Court indicates that Gagné was abruptly deprived of the application of the agreement. The relationship between the parties has deteriorated to an extent where it is impossible to maintain normal business relations.

The Court orders, among other things, that the «Easy Care» contracts made directly between H. Grégoire and CDP be filed and that the amounts pertaining thereto be placed in trust.

Plaintiff Géomatique Emco Inc. («Géomatique») sold cassettes to defendant Les Solutions Allegra Inc. («Allegra») for an amount of $85,831.66 and obtained judgment in December 2003. It is now claiming the amount from Régis Harrison ("Harrison"), sole director and shareholder of Allegra, on the grounds that he did not reveal the insolvency of the company upon the purchase of the cassettes and that he used the proceeds of the sale thereof to pay other creditors.

The Court denies the action against Harrison. Géomatique has not proven satisfactorily that, when the purchase was made, he acted in bad faith or dishonestly to the extent of incurring a personal liability under Article 317 C.C.Q.

Plaintiff Groupe 3-Soft Inc. («3-Soft») was interested in purchasing the mise en cause Groupe Informatique Technologia Inc. («Technologia»). Negotiations were undertaken and drafts of the sales agreement were exchanged. Final drafting of the agreement was given to the parties' lawyers and tax advisors but the agreement was more or less concluded on a handshake.

After the expiry of a draft of an offer, defendants informed 3-Soft that they were not bound by the offer anymore and that they had accepted an offer from a third party. The draft included a provision that an amount of $150,000 in liquidated damages would be payable if Technologia refused to complete the sale.

3-Soft is asking for an order enjoining defendants from selling or promising to sale the shares of Technologia. It is also asking for various orders regarding the offer to purchase.

The Court concludes that the right of 3-Soft is arguable but it is not non-existent. The Court then analyses the damages provision of the offer and concludes that it is a "break-free" provision. 3-Soft cannot allege having sustained irreparable harm.

The injunction is denied.

Appellant Maria Muoio («Muoio») is plaintiff in an oppression remedy against various individuals and legal persons. She claims that the is a shareholder of Reber Inc. ("Reber") and alleges that the other two shareholders, Eginardo De Angelis and Suzanne Dumais, acted in bad faith and abused their rights as directors and used for their own benefit or for the benefit of their companies assets and moneys belonging to Reber. Reber being bankrupt, Muoio has been granted the right to proceed against De Angelis, Dumais and their companies in lieu of the trustee.

De Angelis, Dumais and their companies filed a motion to suspend the proceedings until Muoio has supplied them with her agreement with her lawyers pertaining to legal fees. They allege that as they are creditors of Reber, they have a right to join Muoio in her proceedings. The Superior Court granted their motion.

The Court of appeal concludes that Muoio's proceedings are hybrid. Part of it is an oppression remedy, part of it is an oblique action to reconstruct the assets of Reber and part of it is a claim directly against De Angelis and Dumais.

The Court of appeal indicates that in fact, the real opponents of Muoio are De Angelis and Dumais. Their actions, if judged abusive, shall enable a condemnation for the benefit of Muoio or Reber. In such circumstances, they are not entitled to information pertaining to the relationship between Muoio and her lawyer.

The appeal is granted.

Plaintiff Daley Brothers Ltd. ("Daley") is a Newfoundland company specializing in fish processing. Defendant Marché Blais Inc. («Marché») is a family owned business located in Pabos. Marché operates mainly a snow crab processing business. Marché's shareholders are Jean-Paul Blais, Roland Blais Junior and Joseph-Albert Blais.

On February 22, 2001, Daley and Marché signed a letter of intent whereby Daley would purchase 75% of the issued share capital of Marché for a price of $1.5M. On March 5, 2001, Marché leased to Daley its processing factory and its equipment for the duration of the snow crab fishing season.

In May 2001, relations between the parties deteriorate and Daley is deprived of access to the factory. Daley undertakes injunction proceedings as well as for seizure before judgment. A transaction occurs between all the parties. The transaction includes a provision that 75% of the issued share capital of Marché will be purchased by Daley retroactively to April 1, 2001. The sales price is established at $1.5M and the deed of sale must include the "usual guaranties and conditions".

Negotiations take place but, on June 8, 2001, Marché's attorney advises Daley that the letter of intent of February 2001 is null and void as the shareholders of Marché are not parties thereof. Daley files a motion to introduce proceedings. Defendants file a motion for dismissal on the grounds of res judicata, that the action is prescribed and that the essential prejudicial obligations have not been fulfilled. They request, subsidiarily, that Daley file security for costs.

The Court dismisses the allegations of res judicata. There is no identity of object. The first judgment stated that the parties were bound by an agreement to sell 75% of the share capital of Marché to Daley. Daley is now asking the Court to confirm that the draft of the deed of sale it presented contains the "usual guaranties and conditions". This is a different step of the sales process.

Regarding the prescription, defendants allege that the right of action arose in February 2001, upon signature of the letter of intent. The Court indicates that the legal proceedings interrupted the prescription and that the latter only started in March 2003. The action is therefore not prescribed.

With respect to the essential prejudicial obligations, the Court indicates that Daley transmitted a draft of a deed of sale and declared that it was ready to sign it. It therefore accepted to sign the contract.

In 1988, Antonio Mirarchi («Mirarchi») opened a dental clinic at 7272 Boulevard Maurice-Duplessis, in Rivière-des-Prairies (the «Clinic»). His spouse, Marie-Claude Constance («Constance»), who is also a dentist, joined him in 1990.

In 2001, they sold the Clinic to Joanne Lussier ("Lussier"). The sale included an employment agreement for Constance.

Constance alleges that Lussier terminated her employment contract and claims an amount of approximately $75,000. Lussier is suing Constance for terminating her contract without notice and is suing Constance and Mirarchi for breach of the non-competition and non-solicitation covenant included in the deed of sale.

Evidence reveals that all the assets of the Clinic were sold for the amount of $360,648, including an amount of $183,718 for the goodwill. The attorneys representing the parties negotiated the non-competition provision.

The Court concludes that the non-competition and non-solicitation agreement is not against public order and does not contravene the provisions of the Health Insurance Act, An Act Respecting Health Services and Social Services nor the Code of ethics of dentists.

The Court cannot either agree with Constance's allegations that she was dismissed.

The Court denies Constance's claim and Lussier's cross demand and grants in part the motion for injunction filed by Lussier.

Following the moratorium imposed by the legislator pertaining to the transformation of immovable into divided co-ownership, the parties found a compromise in signing a shareholder agreement and a contract of occupation by the shareholders. Thus, plaintiff Immeubles 5845 Place Decelles Inc. ("5845") is the owner of the immovable and its 15 shareholders, among which is defendant Jean-Luc Bertrand, who holds 240 shares, have a right to occupy an apartment in the building.

Section 21 of the shareholder agreement stipulates that 5845 can terminate the right of occupation if a shareholder is in default of paying amounts due or if he regularly defaults in complying with the by-laws and uses of the building.

Bertrand would have defaulted regularly in the payment of his share of general expenses. He would also have built a storage unit, without authorization, in the electrical area of the building. He would also have had numerous altercations with other occupants of the building.

At a meeting of the shareholders held on March 26, 2000, a majority of 95.4% of the shareholders voted in favor of Bertrand's eviction and the resolution of his contract of occupation. The latter alleges that the resolution of the contract constitutes a breach of a personal right.

The Court indicates that the contract of occupation is related to the status of shareholder and does not constitute a personal right. The decisions of the shareholders are neither illegal nor abusive.

The Court declares that the contract of occupation is resolved. It orders the eviction of Bertrand and payment of the amounts owed to 5845. However, in the absence of legal or conventional provision, the Court cannot order that his shares be sold.

The Quebec Labour Commission is claiming an amount of $20,588.72 from Jean-François Brunelle and François Brunelle as directors of 9119-0629 Québec Inc., for unpaid salaries due to various employees.

Jean-François Brunelle alleges that the provisions enabling the Commission to claim salaries only apply to official directors, and not to de facto directors.

The Court has conducted an exhaustive research of the case law and concludes that there is no controversy on this matter. The notion of director includes the de facto director.

Plaintiff Seanix Technology Inc. ("Seanix") is appealing the decision of the Prothonotary allowing defendant Synnex Canada Limited ("Synnex") to amend their statement of defence in order, among other things, to include a counterclaim challenging the validity of Seanix's trade-marks SEANIX and SEANIX and design.

Seanix alleges that the amendments assert a new cause of action, namely the invalidity and expungement of its trade-mark registrations.

The Prothonotary's reasons for allowing the amendment indicate that there is a well-established rule that an amendment should be allowed at any stage of an action unless it is shown that it is devoid of any chance of success, and provided that it does not result in an injustice to the other party that cannot be compensated by an award on costs.

The Court is of the opinion that the Prothonotary's decision is correct. The controversy between the parties is whether Synnex has infringed Seanix's trade-marks. The defences advanced by Synnex are proper and material defences to the action with the counterclaim rationally connected to those defences.

The dispute between plaintiff White Mountain Tours Ltd. ("White Mountain") and defendant Discover Banff Tours Ltd. ("Discover") centers on the conflict White Mountain's trade-mark JOHNSON CANYON ICE WALK and Discover's use of the phrase "Ice walk in Johnson Canyon".

Discover has filed a motion seeking to sever the liability issues from the damages issues. It asks for an order deferring to all issues of quantification of the infringement, damages and profits to a separated determination to be conducted after the trial of the liability issues.

White Mountain resists the motion principally on the grounds that liability documents and damages documents are inextricably integrated, there are no cost or time savings, which would result from severance.

The Court indicates that the principal relief is injunctive, as that relief determines the future for the respective businesses. Damages are important to deal with the past. Severance should result in time and cost savings. If there is no liability, both the parties' and the Court's time dealing with damages will be saved. Even where liability is found, parties often are able to settle the damages calculations with little or no involvement of the Court.

The motion is granted.

Plaintiff, Dimplex North America Limited ("Dimplex") is the owner of Canadian patents no. 2,175,442 and 2, 310,367, invented by Kristoffer Hess and others (the "Hess Patents"). The Hess Patents relate to flame simulating assemblies used in electric fireplaces. Dimplex alleges that defendants are infringing certain claims of the Hess Patents.

After examination for discovery, Dimplex filed a motion to amend in order to add individuals personally liable for the acts of corporate defendants. The Prothonotary refused the additions on the grounds that the allegations were insufficient to establish the personal liability of the individuals.

The Court indicates that the kind of participation in the acts of the company that should give rise to personal liability is an elusive question. The Court examines the facts pleaded and concludes that one of the individual defendants acted in his personal capacity and not only as director of the company.

The appeal is allowed in part.

Plaintiff 417394 Alberta Ltd. ("417394") began its water cooler business in the spring of 1999 and registered H2OCOOL as a trade-mark.

Defendant H2O Co. Beverages Ltd. ("H2O") began its operations in July 2001. It operates under the names H2O Co. and H2O Co. Water Company.

The parties install and service a relatively new product known as a "point of use" water cooler. It is a dispenser which has a large water bottle inverted on its top. However, unlike traditional water coolers, the bottle is not changed. The cooler filters water from the municipal water supply and the purified water are then stored in the bottle so that it can be dispersed on demand.

The Court is of the opinion that neither the mark nor the names are inherently distinctive. H2O has become a synonym for water. H2O is the prominent feature in both the mark and the names. The other words are relatively insignificant. Neither the mark nor the names have acquired distinctiveness.

The merchandises are, for all practical purposes, identical, but the nature of the trade is not.

The Court finds that the names and the mark are confusingly similar and grants summary judgment to the plaintiff.