J.L. McDougall

The defendants brought a motion for a stay of the class action proceedings pending their appeal of the certification order.

The court applied the RJR-MacDonald test and found that there was a serious issue to be tried, the defendants would suffer irreparable harm from unrecoverable expenses and reputational damage, and the balance of convenience favoured the defendants.

The action was stayed pending the appeal to the Divisional Court.

The appellant manufactured and sold desk trays under the name Starmark.

The respondents manufactured and sold identical trays made of lighter material.

The appellant brought an action for passing-off, which was dismissed at trial and on appeal.

The Supreme Court of Canada dismissed the appeal, upholding the concurrent findings of fact that the appellant's trays had not acquired a secondary meaning or reputation in the market, and finding that the trial judge had not imposed an improper burden of proof on the appellant.

The appellant guarantor executed a guarantee for a company's indebtedness to the respondent bank.

The bank also took an assignment of the company's book accounts but failed to register it properly, rendering it void against the trustee when the company went bankrupt.

The bank sued the guarantor.

The guarantor argued he was relieved of liability because the bank failed to preserve the security.

The Supreme Court of Canada held that a clause in the guarantee expressly permitted the bank to abstain from perfecting securities.

The Court rejected arguments that the clause was an exemption clause subject to strict construction, that it was onerous, or that it was procured by misrepresentation.

The Court also held that any alleged collateral oral agreement to preserve the security contradicted the written guarantee and was inadmissible under the parol evidence rule.

The appeal was dismissed.