COURT FILE NO.: CV-17-576133
DATE: 20180516
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ADT SECURITY SERVICES CANADA
John K. Downing and Brian Whitwham, for the
INC. and ADT CANADA INC.
Plaintiffs
Plaintiffs
- and -
FLUENT HOME LTD. and GRAHAM
Duncan J. Marsden, for the Defendants
WOOD
Defendants
ENDORSEMENT
D.L. Corbett J.:
[1] I have reviewed the materials filed by both sides on the motions to adduce fresh evidence. The plaintiffs’ motion is granted. While I accept that evidence of the type sought to be adduced now was before the court at the return of the motion for an interlocutory injunction, alleged repetition of the impugned conduct is relevant to an assessment of the nature of the alleged conduct and the appropriate remedial response. Unlike most trial situations, the issues on this motion are part of a dynamic situation: the ongoing conduct of two competitors in the marketplace. The evidence clearly would have been admissible on the original return of the motion, and its overall materiality, in light of the complete record of evidence, is arguable. The evidence came into existence shortly before the return of the interlocutory motion, and I am not prepared to find that the failure to raise it on the motion reflected a want of diligence.
[2] Given that I am prepared to admit the fresh evidence tendered by the plaintiffs, I find that the basis on which I should consider the defendants’ request to adduce fresh evidence is somewhat different than a stand-alone request. Since I am permitting the plaintiffs to adduce fresh evidence, the defendants will be entitled to adduce further responding evidence in any event, and I would not limit that responding evidence to the four corners of the plaintiffs’ fresh evidence. I note the plaintiffs’ concerns about the characterization placed on this fresh evidence by the defendants: I say nothing on this point now and leave it for the parties to address in their further argument.
[3] Order to go granting both motions for fresh evidence. Counsel shall agree among themselves on a schedule for any responding and/or reply evidence, cross-examinations (if required), and further argument. I would have thought that further argument could be addressed in writing, but if counsel wish to make further oral argument, they may contact my assistant to arrange a date.
[4] If counsel cannot agree on a schedule, or anything else arising from this endorsement, then they shall arrange a brief teleconference with me through my assistant. I would be obliged if counsel would confirm their schedule with me so that I can schedule time to complete reasons on the injunction motion.
[5] Costs of these motions in my discretion to be addressed as part of the costs of the motion for an interlocutory injunction.
D.L. Corbett J.
Released: May 16, 2018
COURT FILE NO.: CV-17-576133
DATE: 20180516
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADT SECURITY SERVICES CANADA INC. and ADT CANADA INC.
Plaintiff
- and -
FLUENT HOME LTD. and GRAHAM WOOD
Defendant
ENDORSEMENT
D.L. Corbett J.
Released: May 16, 2018