Chestnutt v. Dollery Rudman Design Associates Inc.
T-2143-95
Cullen J.
25/9/96
9 pp.
Appeal under Federal Court Rules, R. 336(5) from Associate Senior Prothonotary's decision under R. 480 to order reference under R. 500 after trial-Plaintiff design artist claiming ownership in bulldog head design used by defendant Molson Breweries-Molson bringing motion for R. 480 reference as plaintiff refusing to consent and order would significantly minimize expense of action-Plaintiff arguing delay caused by order would prejudice him as does not have resources to pursue both trial and separate reference requiring further documentary production and did not consent to reference-Appeal dismissed-Order should only be made on consent of parties or where sufficient reasons bearing on conduct of action to justify order-Effect of minimizing costs compelling reason for reference-In event of settlement, or finding of liability against plaintiff, significant amount of money saved and trial costs minimized-Plaintiff erroneously interpreting reference procedure in claiming not having resources to pursue both trial and reference as to damages-In any event, reference will not be stayed unless special circumstances shown and expense not special circumstance-Order will also have effect of reducing complexity of trial-Great volume of evidence as to extent of damages and profits not necessary until issue of liability determined-R. 480 reference allows evidence as to damages and profits to be examined and heard after trial-Discretionary orders of prothonotaries not to be disturbed on appeal unless based on wrong principle, on misapprehension of facts or raised questions vital to final issue of case-None of these present here-Federal Court Rules, C.R.C., c. 663, RR. 336(5), 480, 500.