Court of Appeal for Ontario

Citation: 2007 ONCA 894

Date: 20071220

Docket: C47431

Before: WEILER, CRONK and BLAIR JJ.A.

Between:

CANADIAN GASKET & SUPPLY INC.

Plaintiff (Appellant)

and

INDUSTRIAL GASKET & SHIM COMPANY, INC., TROCKI-GORDON SUPPLY INC., JOSEPH TROCKI and LEONARD GORDON

Defendants (Respondents)

Counsel:

Peter E. J. Wells and Dale E. Schlosser, for the appellant

Paul D. Marshall and Cassandra Kirewskie, for the respondents

Heard and released orally: December 13, 2007

On appeal from the judgment of Justice J. Lax of the Superior Court of Justice, dated June 22, 2007.

ENDORSEMENT

[1] The appellant challenges the motion judge’s decision to grant partial summary judgment to the respondents on the narrow issue of the ownership of the product in question. In our view, the appeal on this issue cannot succeed for the following reasons.

[2] In its statement of claim, the appellant claims damages against the respondents on several grounds. It also seeks a declaration that it is the owner of “certain confidential information relating to the formula for and method of manufacture” of the product in issue. This is a claim of exclusive ownership pertaining to alleged confidential information relating to the product. It is not an ownership claim concerning the product itself.

[3] More importantly, the appellant entered into a written agreement with the respondent Industrial Gasket & Shim Company, Inc. (IGS) in 1996 whereby it acquired certain licensing and distributorship rights concerning the product from IGS. In the absence of any assertion of the co-ownership of the product – in some form – the need for and the acquisition of such rights is inconsistent with the appellant’s claim that it owned the product. The appellant’s claims, as pleaded, contain no assertion of co-ownership.

[4] We also note that, notwithstanding any contrary assertions by the appellant in its pleadings, the motion judge stated in part at para. 7 of her reasons: “CGS admits that it has never had or known the formula for or method of manufacturing any of the Mill-Pac family of products, including Mill-Pac Black [the product in issue]. It admits that it has never manufactured Mill-Pac Black. It admits it does not know the formula and could not manufacture this product.” Before this court, counsel for the appellant responsibly acknowledged the accuracy of these comments by the motion judge.

[5] In all these circumstances, we agree with the motion judge that there is no triable issue concerning whether the appellant is the owner of the product at issue. As a result, the motion judge did not err in granting partial summary judgment on this issue.

[6] We reach a different conclusion, however, in respect of the motion judge’s grant of a declaration that IGS owns the product. In our view, such a declaration should not have been granted in the absence of a counter-claim by IGS.

[7] For the foregoing reasons, the appeal is allowed, in part, by striking para. 2 of the judgment dated June 22, 2007. In all other respects, the judgment remains in full force and effect.

[8] The respondents are entitled to their costs of the appeal, fixed in the total amount of $10,000, inclusive of disbursements and G.S.T.

“K. Weiler J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”