Court File and Parties
COURT FILE NO.: 129/02 DATE: 20030221
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, GREER AND CAPUTO JJ.
B E T W E E N:
TRAVEL 2000 LTD. Respondent
- and -
iTRAVEL2000.COM INC. Appellant
Counsel: Richard C. Belsito, for the Respondent John S. Contini, for the Appellant
HEARD: February 21, 2003
Oral Reasons for Judgment
THEN J.: (Orally)
Overview
1The appellant is seeking to set aside the Director's decision and asks this Court for an order directing that the Director refuse to issue a certificate to amend under s.12 of the Ontario Business Corporations Act to the appellant to change its corporate name.
2We appreciate that pursuant to the authorities, our task it not to review the exercise of discretion by the Director but to exercise our own discretion anew.
Standard of Review
3In this respect we would refer to what has been stated by Madam Justice Feldman in Terenex Information Services Inc. and Canada (Canada Business Corporations Act Director (1995) 1995 7411 (ON SC), 20 B.L.R. (2d) 192, 1995 O.J. No. 78 where at para. 27 she notes:
"A Court of Appeal should give great weight to the decision of the Director who has the expertise and experience in considering the propriety of corporate names but the Court must in the end accept the ultimate responsibility for determining the issue on the evidence before it."
4We accept that the exercise of our discretion must be accomplished in the same manner as the Director should in exercising her discretion. The test has been set out by Mr. Justice Robins in Re Cantrade Sales and Import Co. Ltd. (1977) 1977 1368 (ON SC), 15 O.R. (2d) 562 at pp. 566-7:
"The Minister is obliged to consider whether, in the light of all the surrounding circumstances of a particular case, the name ought to be ordered changed. This consideration, as a primary matter, involves the public interest in not being subjected to confusion through the use of similar corporate names, and a secondary matter, the interests of the companies claiming the name and the relative hardship that may result to them from the decision."
Justice Robins goes on to say at p.567:
"This section, unlike that of the previous legislation which provided for recourse to the Courts by way of review only, gives very broad jurisdiction to this Court empowering it to direct the Minister to make such decision as it thinks proper having regard to the material and submissions before it and to the Act."
Analysis
5We are all of the view that the Director properly exercised her discretion as outlined in Cantrade above and on this record we exercise our discretion in substantially the same manner to obtain the same result. We would note however, that at paragraph 13 of her reasons she states:
"None of its services has been offered over the Internet, but the Objector indicates that it may wish to do so in the future."
6In our view the Director has not in terms advanced this as a reason for the exercise of her discretion in favour of the Objector and I would emphasize that nor do we. We are not persuaded that the Director has taken into account an extraneous or speculative consideration of the kind referred to in Re Menzies Gibson Ltd. (1955) 1 A.L.R. (2d) 187 (Ont. H.C) at p.190.
Disposition
7Accordingly, we are all of the view that the appeal must be dismissed.
Costs
8I have endorsed the appeal book as follows: "This appeal is dismissed for oral reasons by the Court. Costs to the respondent on a partial indemnity basis fixed in the amount of $8,000, plus disbursements, plus GST."
THEN J.
GREER J.
CAPUTO J.
Date of Reasons for Judgment: February 21, 2003 Date of Release: February 28, 2003
COURT FILE NO.: 129/02 DATE: 20030221
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, GREER AND CAPUTO JJ.
B E T W E E N:
TRAVEL 2000 LTD. Respondent
- and -
iTRAVEL2000.COM INC. Appellant
ORAL REASONS FOR JUDGMENT THEN J.
Date of Reasons for Judgment: February 21, 2003
Date of Release: February 28, 2003