Court File and Parties

2018 ONSC 6078 Barrie Court File No.: CV-18-1236 Date: 20181015 Ontario Superior Court of Justice

Between: Car-Wal Garage Doors Inc., Plaintiff – and – On Track Door Systems Canada Inc., Defendant

Counsel: Mary Anne Cummings, for the Plaintiff Karen Perron, for the Defendant

Heard: September 25, 2018

Reasons for Decision

Charney J.:

Introduction

[1] This is a motion for an interlocutory injunction brought by the plaintiff, Car-Wal Garage Doors Inc. (Car-Wal), seeking to restrain the defendant, On Track Door Systems Canada Inc. from carrying on business under any business or trade name containing the phrase “On Track” and from using the domain name “ontrackdoorsystems.ca”.

[2] The defendant has brought a cross-motion to strike the plaintiff’s claim under Rule 21.01(1)(b) (striking a pleading on the ground that it discloses no reasonable cause of action) or 21.01(3)(d) (dismissing an action on the ground that it is frivolous or vexatious or is otherwise an abuse of the process of the court).

Facts

[3] The plaintiff carries on business as a purchaser, seller, installer and servicer of automatic garage doors for residential and commercial buildings in Ontario. The plaintiff is the successor corporation to 2152222 Ontario Ltd. and On-Track Door Systems Inc. On-Track Door Systems Inc. amalgamated with Car-Wal on January 1, 2016.

[4] The defendant is also in the automatic garage door installation and service business. It was originally incorporated in 2008 under the name 2173435 Ontario Inc. Sheldon McPherson is the sole officer and director of the defendant.

[5] Prior to January 2015, both the plaintiff and the defendant were shareholders in On-Track Door Systems Inc.

[6] In January 2015, the plaintiff and the defendant (through their predecessor companies) entered into a “Re-organization Agreement” whereby the plaintiff purchased 2173435 Ontario Inc. and Sheldon McPherson’s remaining interest in the company On-Track Door Systems Inc. for $100,000.

[7] This agreement included a non-competition and non-solicitation agreement that prohibited McPherson and 2173435 Ontario Inc. from competing in a defined geographic area (south of Highway 89) for a period of five years.

[8] The agreement also included a licence agreement. Pursuant to the licence agreement, McPherson and 2173435 Ontario Inc. were permitted to use the trade name “On-Track” for four months following the sale. After four months post closing of the sale, the defendant was “permitted to use the word(s) “ON” and “TRACK” in any other business name identifier”, subject to the territory restrictions outlined in the non-competition agreement.

[9] The Re-organization Agreement provided a couple of examples to clarify the licence agreement. Paragraph 6(ii) of the Re-organization Agreement stated:

By way of example only, McPherson’s Corporation shall be permitted to use the name “McPherson On-Track Garage Door Sales and Service” or “Peninsula On-Track Doors”.

[10] On April 21, 2015, the defendant 2173435 Ontario Inc. changed its name to “On Track Door Systems Grey Bruce Inc.”.

(i) The First Statement of Claim

[11] This agreement soon led to litigation between the parties. The plaintiff (through its predecessor companies 2152222 Ontario Ltd. and On-Track Door Systems Inc.) issued a Statement of Claim against 2173435 Ontario Inc. and Sheldon McPherson on November 3, 2015. The Claim was based on breach of contract, and sought damages and an interlocutory injunction to prevent the defendants from soliciting or accepting business from the plaintiffs’ customers, or from using the trade name “On-Track”, other than in the permitted territory, contrary to the agreement.

[12] The motion for an interlocutory injunction was heard on April 14 and 15, 2016.

[13] On May 3, 2016, Quinlan J. granted the interlocutory injunction (2152222 Ontario Limited v. 2173435 Ontario Inc., 2016 ONSC 2978) restraining the defendants Sheldon McPherson and 2173435 Ontario Inc. from directly or indirectly, carrying on the business of garage door and opener sales, installations and servicing, or permitting the trade name “On Track” to be used in any aspect of such business, “other than within the area permitted by the non-competition and non-solicitation agreement entered into between the parties”.

(ii) The Minutes of Settlement

[14] Following the granting of the interlocutory injunction, the parties were able to settle their dispute. On June 6, 2017 they entered into Minutes of Settlement.

[15] The terms of the Minutes of Settlement provided payment by the defendants to the plaintiff and dismissal of the action. Several provisions in the Minutes are relevant to the present dispute. Paragraph H of the preamble to the Minutes state:

On-Track, 217 Ontario and Grey Bruce [the parties]…in exchange of the mutual rights, covenants and consideration provided for herein, have concluded a settlement of any and all claims made, or which could have been made with respect to the Contracts and, without limiting the generality of the foregoing, all of the claims made or which could have been made in the Action according to the following terms.

[16] Also relevant to the present dispute is para. 7 of the Minutes, which provides:

The Parties acknowledge and agree that the Non-Compete will lapse and expire on October 31, 2017 and the Parties further acknowledge and agree that after October 31, 2017 there are no agreements or contracts existing or enforceable as between them, subject to the terms of this Agreement and the Release…”

[17] Thus, both the non-competition agreement and the licence agreement expired on October 31, 2017.

(iii) The Second Statement of Claim

[18] On March 6, 2018 the defendant changed its name from “On Track Door Systems Grey Bruce Inc.” to “On Track Door Systems Canada Inc.”

[19] On August 14, 2018 the plaintiff issued a Statement of Claim against “On Track Door Systems Canada Inc.”, seeking damages and an injunction to prevent the defendant from carrying on business under any business or trade name containing the phrase “On Track”. In the alternative, the claim seeks an injunction to prevent the defendant from using the trade name “On Track” except for the name “On Track Door Systems Grey Bruce Inc.”

[20] The Statement of Claim is based on the tort of “passing off”. It alleges that the defendant is selling substantially the same products as those of the plaintiff’s and causing confusion in the minds of consumers.

[21] The plaintiff takes the position that the defendant was permitted to use the words “On” and “Track” in its name by virtue of the licence agreement entered into in January 2015. That licence expired on October 31, 2017 (the date set out in paragraph 7 of the Minutes of Settlement), and since that date the defendant has no contractual right to use the plaintiff’s “On Track” trade name. Paragraph 20 of this Statement of Claim states: “The Plaintiff therefore states that, since October 31, 2017, the Defendant has had no right, in contract or otherwise, to use the Plaintiff’s “On-Track” trade name.”

[22] The defendant takes the position that since the expiry of the contracts on October 31, 2017, it has been free to use the trade name “On Track” without geographic limit or restriction.

(iv) Facts Relevant to Motion for Interlocutory Injunction

[23] The plaintiff takes the position that the trade name “On Track”, and its distinctive logo and signage, which were purchased from the defendant in 2015, are the subject of considerable good will throughout southern Ontario. The plaintiff relies on the following evidence:

(a) The plaintiff’s vehicles prominently display the “On Track” trade name and distinctive logo. (b) The plaintiff continues to use the “On Track” logo and trade name on its inspection sheets for commercial clients. (c) More than 10,000 “On Track” marketing stickers bearing the distinctive “On Track” logo have been affixed by the plaintiff on commercial and residential garage door installations within the Kitchener/Guelph market. Clients will frequently search the name “On Track” on the internet after seeing the sticker if they require maintenance on their garage doors. (d) The plaintiff continues to use the domain name “ontrackdoorsystems.com”, which it purchased from the defendant on June 25, 2015 as part of the purchase of the defendant’s shares in On-Track. (e) The plaintiff continues to use some “On Track” marketing materials with former On-Track customers.

[24] The plaintiff has provided evidence that the defendant has engaged in conduct intended to mislead or create confusion among the plaintiff’s customers and the general public. This conduct has included the following:

(a) On March 6, 2018 the defendant changed its name from “On Track Door Systems Grey Bruce Inc.” to “On Track Door Systems Canada Inc.” (b) The defendant has purchased the internet URL “www.Ontrackdoorsystems.ca” to direct the public to the defendant’s website. (c) The defendant is using the plaintiff’s distinctive logo on its web page and other marketing materials. It has simply added the word “Canada” inside one of the arms of the “T” in the word “Track”. Otherwise the logos are identical. (d) The defendant is attending home and garden shows with vehicles and signage that display the plaintiff’s logo. (e) The defendant has established a twitter feed that uses the phrase “OnTrackDoorCan”. The profile picture on the feed is almost identical to the plaintiff’s On Track logo.

[25] The products sold by the two companies are substantially similar. The plaintiff has provided evidence that the defendant’s actions have caused significant confusion to the plaintiff’s clients, potential clients and the public:

(a) The plaintiff has been contacted by numerous existing customers and potential customers who believed they were contacting the defendant. (b) In the past 3 to 4 months the plaintiff has received numerous complaints from existing customers who have contacted the defendant in error, believing it to be the plaintiff. These customers have been unhappy with the service they received and have expressed upset with the plaintiff. (c) Suppliers of the defendant have mistakenly invoiced the plaintiff. (d) Suppliers of the plaintiff are expressing confusion to the plaintiff because they have been asked by the defendant for supply quotes when the plaintiff has already obtained quotes from those suppliers. (e) Customers of the defendant are mistaking the plaintiff for the defendant and are sending the plaintiff payments for services rendered by the defendant. (f) The defendant has received poor reviews on the internet Yellow Pages consumer review sites. The reviews appear under the name “On Track Door Systems Inc.”

[26] The plaintiff has provided a photograph of one of its vehicles with the “On Track” trade name and distinctive logo, and a photograph of the defendant’s vehicle with the identical name and logo. The two logos appear indistinguishable, save for one apparent difference between the two: the defendant’s logo includes the word “Canada” inside one of the arms of the T in the word Track.

[27] Based on this evidence the plaintiff argues that the defendant is promoting itself in such a way as to create the false impression that its business, products and services are in some way approved, authorized or endorsed by the plaintiff or that there is some business connection between them.

(v) Position of the Defendant

[28] The defendant has two main arguments in reply. First, it argues that the plaintiff’s motion should be dismissed because the underlying action is res judicata or an abuse of process since the issues raised and the facts alleged in the second Statement of Claim were already dealt with in the first action that was fully settled between the parties.

[29] Second, the defendant argues that it has been using the name “On Track Door Systems” continually since 2015, and the only change to its name is the geographic identifier, which changed from “Grey Bruce” to “Canada” in March 2018. Since the expiry of the non-compete restriction on October 31, 2017, pursuant to paragraph 7 of the Minutes of Settlement, there is no longer any reason for the defendant to restrict its geographic identifier to Grey Bruce.

Analysis

[30] Section 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court authority to grant an interlocutory injunction “where it appears to a judge of the court to be just or convenient to do so”.

[31] The standard test for an injunction is articulated in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 SCC 117, [1994] 1 SCR 311 at p. 344, and requires the moving party to demonstrate the following:

(a) there is a serious issue to be tried; (b) the moving party will suffer irreparable harm if the relief is not granted; and (c) the balance of convenience favours the moving party.

[32] I will deal with each of these components in turn.

Serious Issue To Be Tried

[33] The threshold for a ‘serious question to be tried’ is a low one. The judge on the motion must make a preliminary assessment of the merits of the case and be satisfied only that the issue is neither vexatious nor frivolous. “A prolonged examination of the merits is generally neither necessary nor desirable”: RJR-MacDonald, at paras. 49 and 55.

[34] One line of cases in Ontario has found that the higher standard of a strong prima facie case applies where a party seeks to enforce a restrictive covenant by way of interlocutory injunction; see: 2158124 Ontario Inc. v Pitton, 2017 ONSC 411, at para. 32; and Boehmer Box L.P. v. Ellis Packaging Ltd., [2007] O.J. No. 1694 (S.C.J.), at para. 39.

[35] Quinlan J. applied this higher standard when she granted the interlocutory injunction in the first action (2152222 Ontario Limited, at para. 8) because the plaintiff in that action was seeking to enforce a restrictive covenant.

[36] In the present case the parties agree that the restrictive covenant at issue in the first case expired on October 31, 2017 in accordance with terms of the Minutes of Settlement signed on June 6, 2017. Since there is no restrictive covenant in force between the parties, and the defendant is free to compete with the plaintiff without territorial restriction or limitation, the lower “serious issue to be tried” threshold applies in this case.

[37] Here the issue for trial is the tort of “passing off” alleged in the August 14, 2018 Statement of Claim. Has the plaintiff presented a “serious issue to be tried” with respect to this tort?

[38] In Ciba-Geigy Canada Ltd. v. Apotex Inc., 1992 SCC 33, [1992] 3 SCR 120, at para. 33, the Supreme Court cited with approval the following summary of the tort of passing off found in Reckitt & Colman Products Ltd. v. Borden Inc., [1990] 1 All E.R. 873, per Lord Oliver, at p. 880:

The law of passing off can be summarised in one short general proposition, no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying “get-up” (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff’s goods or services. Second, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. . . . Third, he must demonstrate that he suffers or, in a quia timet action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the plaintiff. [Emphasis added.]

[39] The Supreme Court of Canada summarized the law as follows:

The three necessary components of a passing-off action are thus: the existence of goodwill, deception of the public due to a misrepresentation and actual or potential damage to the plaintiff.

[40] See also: Dentec Safety Specialists Inc. v. Degil Safety Products Inc., 2012 ONSC 4721, at paras. 9–11:

The tort of passing-off prevents people from selling their products to consumers after having led them to believe that they are the products of another… There is no requirement that the defendant’s actions be intentionally fraudulent, malicious, or even negligent. The tort of passing-off is complete without reference to the defendant’s state of mind. See: C. Wadlow, The Law of Passing-Off (4th ed., 2011) at §§ 1-014 et seq.

The essence of the tort is deceit by the defendant suggesting that the defendant’s product is the plaintiff’s product, which thereby causes confusion in the minds of consumers as to whose products are being sold. It is not necessary for the plaintiff to establish that consumers were actually misled by the defendant’s conduct, but simply that the defendant made an attempt to mislead the public. It is important to avoid confusing anyone who has an actual or potential connection with the product. Such confusion may enable a competitor to secure a commercial advantage by effecting product sales it would not otherwise achieve, or it may result in a consumer purchase that might not otherwise have taken place...

Practically speaking, cases of passing-off typically fall into one of two broad categories, namely: (1) where competitors are engaged in a common field of activity and the defendant has named, packaged, or described its product or business in a manner likely to lead the public to believe that the defendant’s product or business is that of the plaintiff; or (2) where the defendant has promoted its product or business in such a way as to create the false impression that its product or business is in some way approved, authorized, or endorsed by the plaintiff or there is some business connection between them, thereby capitalizing on the plaintiff’s reputation and good will.

[41] The tort of passing off also applies to the use of domain names (see Dentec, at para. 12).

[42] The defendant presents a number of arguments with respect to the serious issue to be tried threshold.

[43] The first argument is that the plaintiff’s action is without merit because it is res judicata or an abuse of process. The defendant takes the position that the cause of action in this second action was argued or with reasonable diligence could have been argued in the prior proceeding. The prior proceeding ended in a settlement of “all of the claims made or which could have been made in the Action” as between the parties, and with a consent order putting an end to the action.

[44] The defendant argues that the facts giving rise to the cause of action in the first action are substantially the same as those giving rise to the second action. In both cases the fundamental complaint of the plaintiff is competition and the use of the trade name “On Track” by the defendant. The defendant argues that all of the facts giving rise to the second cause of action for passing off were known by the plaintiff at the time of the commencement of the first action and by the time of the execution of the Minutes of Settlement.

[45] During the argument of the plaintiff’s motion for an interlocutory injunction, I indicated to the defendant that the time permitted for the motion did not allow me to fully consider the defendant’s cross-motion to strike the claim under Rule 21.01. That said, the issue under Rule 21.01(3)(d) – is the action frivolous or vexatious or otherwise an abuse of the process of the court? – is very similar to the first component of the RJR-MacDonald test - is there a serious issue to be tried? It may well be that the inevitable corollary to an affirmative answer to the RJR-MacDonald test is a negative answer to the Rule 21.01(3)(d) test.

[46] For my purposes, however, I am only deciding whether there is a serious issue to be tried for the purposes of assessing whether an interlocutory injunction should be granted. If it is plain and obvious that the defendant’s res judicata /abuse of process argument is correct, the plaintiff would not meet the “serious issue to be tried” threshold.

[47] The defendant has also presented evidence that the plaintiff no longer uses or displays the “On Track” logo. For example, the defendant’s affidavit alleges that the photograph of the plaintiff’s truck “appears very old and not in use”, and that the logo no longer appears on the plaintiff’s building signage. The defendant argues that if the plaintiff no longer uses or displays the “On Track” logo, the necessary elements of the tort of passing off are not present. This, however, is a factual dispute that will have to be resolved in a trial.

[48] In my view, the plaintiff’s case does meet the “serious issue to be tried” threshold. The second cause of action is not clearly barred by the principle of res judicata or abuse of process. The first cause of action was a contract claim based on the terms of the contract agreed to by the parties in January 2015. The first cause of action related to alleged breaches of the territorial restrictions in the non-competition and non-solicitation agreement and the licencing agreement.

[49] The second cause of action is not a contract claim because the contracts between the parties expired on October 31, 2017. The second cause of action is a tort claim that could only arise once the licencing agreement expired on October 31, 2017, and, the plaintiff argues, the defendant’s licence to use the trade name “On Track” expired. While the August 14, 2018 Statement of Claim refers to facts that pre-date the expiry of the contracts, these facts are included for historical context only, and not as part of the claim being advanced by the plaintiff.

[50] There is no question that the defendant is now permitted to compete with the plaintiff without territorial restriction or limitation. The only issue in the second Statement of Claim is whether the defendant can do so using the trade name “On Track” since the licence agreement expired. This was not a cause of action that the plaintiff could have brought prior to October 31, 2017.

[51] The parties clearly disagree about the proper interpretation of the Minutes of Settlement signed on June 6, 2017. Unfortunately, the future use of the trade name was not directly addressed in the Minutes of Settlement. The plaintiff argues that the Minutes settled its breach of contract claim against the defendant, and permitted the defendant to use the On Track trade name only until October 31, 2017. The defendant argues that the Minutes gave it the right to use the On Track trade name even after the expiry of the contract.

[52] The defendant’s use of the trade name “On Track” after October 31, 2017 is the basis of the dispute between the parties and the second Statement of Claim, and, in my view, this raises a serious issue for trial.

[53] For the same reasons I reject the defendant’s argument that the second action is statute barred by the two year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The relationship between the parties changed with the expiry of the licencing agreement on October 31, 2017, and the Statement of Claim was issued within two years of that date. Even if the defendant has been using the trade name “On Track Door Systems Grey Bruce Inc.” since 2015, that does not mean that it was entitled to use the name “On Track” after the licencing agreement expired on October 31, 2017.

[54] I am satisfied that the evidence presented by the plaintiff on this motion meets the serious issue to be tried threshold. The defendant has continued to use the trade name “On Track” notwithstanding the expiry of the licence agreement, and there is evidence that this has caused confusion among the plaintiff’s customers and the general public since early 2018. Indeed, assuming the accuracy of the photographic evidence provided by the plaintiff, it would be surprising if there were no confusion. There is evidence to support each of the three elements of the tort of passing off: the existence of goodwill, deception of the public due to a misrepresentation and actual or potential damage to the plaintiff.

[55] For all of these reasons, I find that there is a serious issue to be tried and the plaintiff has met the first part of the test for an interlocutory injunction.

Irreparable Harm

[56] Irreparable harm refers to the nature of the harm suffered rather than its magnitude. Harm is irreparable if it cannot be cured or meaningfully remedied with an award of monetary damages. One example of such harm is “permanent market loss or irrevocable damage to its business reputation”: RJR-MacDonald, at para. 64.

[57] In this case the defendant has continued to use the plaintiff’s trade name and logo. The evidence provided supports the plaintiff’s position that the defendant’s conduct will damage the plaintiff’s goodwill or business reputation if clients are confused about the relationship between the two companies. Confusion and injury to the plaintiff’s goodwill is inevitable. Given the nature of the industry, in which customers may return to the installer for service, there is a real risk that the conduct complained of will also result in permanent market loss. Such harm will be difficult to translate into monetary terms.

[58] In addition, the defendant’s use of the domain name “ontrackdoorsystems.ca” after it sold the domain name “ontrackdoorsystems.com” to the plaintiff in 2015, will also result in irreparable harm since it will be impossible to tell how many potential clients were inadvertently redirected to the “.ca” site rather than the plaintiff’s “.com” site.

[59] For these reasons, I find that the plaintiff will suffer irreparable harm if the relief is not granted and has therefore met the second part of the test for an interlocutory injunction.

Balance of Convenience

[60] The balance of convenience requires an assessment of which of the parties would suffer the greater harm from the granting or refusal of the injunction pending a decision on the merits. One consideration under this branch is the preservation of the status quo (RJR-MacDonald, at para. 80).

[61] The plaintiff argues that the balance of convenience weighs in favour of its established business and customer base. The plaintiff purchased the “On-Track” business and trade name from the defendant in January 2015, in order to take advantage of the history, goodwill and customer base associated with the On-Track trade name. Now that the licence agreement has expired, the balance of convenience should favour the company that bought the On-Track trade name in good faith and for valuable consideration.

[62] The plaintiff has provided an undertaking regarding damages in accordance with Rule 40.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[63] The defendant argues that apart from changing its name from “On Track Door Systems Grey Bruce Inc.” to “On Track Door Systems Canada Inc.”, it has used the same name and logo since 2015. The geographic identifier is not prominent, and, since the expiry of the non-compete restriction on October 31, 2017, there is no longer any reason for the defendant to restrict its geographic identifier to Grey Bruce. If the defendant is now restrained from carrying on business under any name containing “On Track” it will suffer substantial prejudice including lost sales and goodwill.

[64] In my view the balance of convenience does favour the plaintiff, since it purchased the “On Track” trade name and the domain name “ontrackdoorsystems.com” in June 2015. The defendant appears to have been permitted to use that trade name since that date by virtue of the terms of the licence agreement that expired on October 31, 2017.

[65] That said, the defendant continued using the “On Track Door Systems Grey Bruce Inc.” after the licence agreement expired on October 31, 2017, and the plaintiff did not move for an interlocutory injunction until nearly ten months later, on August 14, 2018. It appears that the plaintiff remained unconcerned until the defendant changed its name to “On Track Door Systems Canada Inc.” in March 2018. This suggests that the harm stems, at least in part, from the change to the broader geographic identifier; the reference to “Canada” appears to have created more confusion than the reference to “Grey Bruce”. Accordingly, the alternative relief requested by the plaintiff (to prevent the defendant from using the trade name “On Track” except for the name “On Track Door Systems Grey Bruce Inc.”) appears to strike the appropriate balance of convenience at this stage of the proceedings.

[66] Since the non-competition and non-solicitation agreements expired on October 31, 2017, there is no basis, at this stage, to impose a territorial limit or restriction on the defendant’s use of “On Track Door Systems Grey Bruce Inc.”.

[67] In addition, I am satisfied that the balance of convenience favours the plaintiff with respect to the use of the domain name “ontrackdoorsystems.ca”.

[68] If the plaintiff is ultimately successful on the merits, the scope of any permanent injunction may well be broader than the scope of the injunction granted at this interlocutory stage.

Production

[69] The plaintiff’s Notice of Motion also requested an order directing the defendant to deliver to the plaintiff’s lawyers and the court a copy of the defendant’s general ledger and customer lists for the defendant for all entries for sales and services since January 1, 2018. This claim for relief was not addressed in the plaintiff’s factum or during oral argument.

[70] I agree with the defendant that this request for production is premature. The scope of production is a matter to be properly addressed during the discovery process. If the parties have a dispute about the scope of discovery and disclosure, it can be addressed at that point.

Conclusion

[71] For the foregoing reasons, this Court orders:

(a) The defendant is restrained from carrying on business under any corporate, business or trade name containing the words “On Track”, except for the name “On Track Door Systems Grey Bruce Inc.”. (b) The defendant is restrained from using the domain name “www.ontrackdoorsystems.ca”.

[72] The plaintiff is presumptively entitled to its costs for this motion. If the parties are not able to agree on costs, the plaintiff may serve and file written submissions of no more than three pages plus costs outline and any offers to settle, within 25 days of the release of this decision, and the defendant may file responding submissions on the same terms within 15 days thereafter.

Justice R.E. Charney Released: October 15, 2018