COURT FILE NO.: 621/2002

DATE: 20030314

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, J. MACDONALD AND CULLITY JJ.

B E T W E E N:

LUDWIG HEIMRATH

Applicant

• and -

1290100 ONTARIO INC. and BEVERLY HAWTON, in her capacity as Registrar (Business Names Act)

Respondents

Leah Price, for the Applicant

David A. Taub, for the Respondent, 1290100 Ontario Inc.

Jean C.H. Iu, for the Respondent, Beverly Hawton, in her capacity as Registrar (Business Names Act)

HEARD: March 14, 2003

LANE J.: (Orally)

1This is an application for a mandatory order requiring the Registrar under the Business Names Act to cancel the registration of certain business names registered by the respondent numbered company. These business names all contain the name Heimrath which is the last name of the applicant.

2The basis for this application is that the numbered company registered these business styles in violation of conditions for registration under the Business Names Act because it had no written consent from Mr. Heimrath to use his name. The Act requires that a registered business style may not contain the name of a specific individual unless, inter alia, that individual has consented in writing to the use of his name. The Act further requires the Registrar to cancel any registered name that does not comply with the requirements of the Act.

3The background is that between 1964 and the year 2000, Mr. Heimrath operated an import automobile dealership in the city of Toronto handling Porsche automobiles. In 2000, he decided to leave that business and entered into an agreement with the respondent company whereby it agreed to purchase either the business, or certain assets of the business, from Mr. Heimrath. Disputes have arisen between the parties over this agreement and an action has begun. One of the issues in the action is whether the respondent has the right to use Mr. Heimrath's name.

4Mr. Heimrath made a written request to the Registrar to cancel the offending registrations. In response the Registrar wrote saying that one of those registrations, namely"Heimrath Racing" would be cancelled. She also wrote to the respondent requiring it to provide evidence to the Ministry of a written consent to the use of the name Heimrath. On December 10, 2001, the respondent's counsel replied to the Ministry and alleged that there had been an oral consent to the use of the name and in the action it has also said that the agreement allows it.

5The Registrar took the position that she had no adjudicative function and as there is an action between the parties she would await the results of that action. Mr. Heimrath then applied to this Court for an order in the nature of mandamus to require the Registrar to make an adjudication on the matter.

6Mandamus is a discretionary remedy. In the case of Khalil et al. v. Secretary of State for Canada, 1999 9360 (FCA), 176 D.L.R. (4th) 191, the Federal Court of Appeal has set out the elements to be considered by the Court when it is asked to issue an order of mandamus. These are:

(a) the respondent must be under a public legal duty to act;

(b) the duty must be owed to the applicant;

(c) there must be a clear right to performance of that duty and the applicant must have satisfied all conditions precedent to the performance of that duty;

(d) no other adequate remedy is available to the applicant;

(e) the order sought must have some practical effect;

(f) in the exercise of its discretion, the Court must find no equitable bar to the relief sought; and

(g) on a balance of convenience, the order should issue.

7Of particular interest is the question of the existence of an alternative remedy and whether, in the light of that alternative remedy, the balance of convenience does not favour issuing the order of mandamus.

8At the opening of the hearing yesterday we raised with the applicant's counsel the fact that the question of the respondent's right to use the names in issue was a central matter in an action already before the Superior Court. We asked counsel to address us on why this action was not a suitable and adequate alternative remedy and if it was, why should we not exercise our discretion and decline the order of mandamus and leave the parties to fight the matter out in the action. Yesterday and this morning we have heard counsel's submissions on the issue. We have reached the conclusion that the action is an adequate alternative remedy and that we should exercise our discretion not to issue the mandamus.

9It is beyond argument that the Superior Court has the jurisdiction to interpret the agreement between the parties and decide whether it contains a consent to the use of these names. While it is the function of the Registrar and not the Court to delete or add names from the register, that deletion will inevitably follow from a decision on the consent issue at trial in the Superior Court. That is one alternative.

10Looking at the other alternatives, if we direct the Registrar to make the decision herself, she will, presumably, have to hold a hearing to determine the meaning of the contract which will effectively duplicate what is to take place in the Superior Court. Alternatively, if we attempt to decide this issue ourselves we will still have to hold such a hearing in order to hear the evidence the parties will wish to bring in aid of the interpretation of the contract. Neither the Registrar nor the Divisional Court is in as good a position as the Superior Court at trial to determine these issues.

11It was submitted that there is a risk that the trial may not in fact determine the issue of whether a written consent exists because of certain remarks of Mr. Justice Jarvis in refusing Mr. Heimrath an interlocutory injunction in that action. We do not think that Justice Jarvis meant to say that the Superior Court did not have the jurisdiction to decide this issue because of the proceedings before the Registrar. If however, he did mean that, with great respect, we disagree. The Registrar has made no decision on the merits of the case. The jurisdiction of the Superior Court is plenary and ample to enable it to determine these issues.

12In summary, another adequate remedy is available to the applicant in the form of the action between the parties. The interpretation of the agreement is a central issue. That is also the issue that would take place before the Registrar. While there is likely to be some passage of time before the trial takes place, with reasonable efforts that time need not be prejudicial to either party. For these reasons we exercise our discretion and decline to order a mandamus. We expressly do not decide the issue of whether the Registrar does have, where it is necessary to do so, an adjudicative function in carrying out her duty. The application for judicial review is therefore dismissed.

13In all of the circumstances there will be no costs.

___________________________

LANE J.

___________________________

J. MACDONALD J.

___________________________

CULLITY J.

Date of Reasons for Judgment: March 14, 2003

Date of Release: March 27, 2003

COURT FILE NO.: 621/2002

DATE: 20030314

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, J. MACDONALD AND CULLITY JJ.

B E T W E E N:

LUDWIG HEIMRATH

Applicant

• and -

1290100 ONTARIO INC. and BEVERLY HAWTON, in her capacity as Registrar (Business Names Act)

Respondents