COURT FILE NO.: 409/07
DATE: 20071102
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RESEARCH IN MOTION LIMITED
Plaintiff
- and -
ATARI, INC. and ATARI INTERACTIVE, INC.
Defendants
Steve Mason and Heather Meredith, for the Plaintiff
Peter E.J. Wells, for the Defendants
HEARD at Toronto: November 2, 2007
gans J.: (Orally)
[1] This is an application for leave to appeal the decision of Spiegel J. made on the 2nd of August last wherein the motions judge refused to allow a Rule 21 motion to strike out all or some portion of the plaintiff’s fresh as amended Statement of Claim as disclosing no reasonable cause of action.
[2] It is without dispute that in order to succeed on this motion, the applicant must justify satisfy either of the twofold tests described in Rule 62.02(4)(a)(b) of the Rules of Civil Procedure.
[3] Respectfully, and notwithstanding the clear and concise submissions of counsel for the applicant, I am not persuaded that there are either conflicting decisions in respect of the matters in issue, nor is there any reason to doubt the correctness of the decision at first instance, which itself was clear, cogent and carefully written.
[4] In my view, the matter is less than clear, obvious and beyond doubt that the plaintiff is not entitled to seek the declaratory relief claimed in this Court both under Canadian and/or American law. I would also observe, without deciding in any event, that if the defendants, take issue with the applicability of U.S. law to a cross-border declaration, as it were, or with this court’s authority to make such an order, such a question can be litigated later on in the proceedings in a motion for summary judgment after the filing of the appropriate affidavits of American jurists.
[5] In the result, the application will be dismissed. Costs of the respondents are fixed at $8,000, inclusive of GST and disbursements, payable within 30 days, (together with the costs awarded by Spiegel J.)
GANS J.
Date of Reasons for Judgment: November 2, 2007
Date of Release: November 2, 2007
COURT FILE NO.: 409/07
DATE: 20071102
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RESEARCH IN MOTION LIMITED
Plaintiff
- and -
ATARI, INC. and ATARI INTERACTIVE, INC.
Defendants
ORAL REASONS FOR JUDGMENT
GANS J.
Date of Reasons for Judgment: November 2, 2007
Date of Release: November 2, 2007