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Appeal court endorses trial judges' discretion in food fight

Originally published in

A recent Court of Appeal judgment reinforces trial judges’ wide discretion to decide procedural issues, says Toronto intellectual property lawyer John Simpson.

Simpson, principal of IP and new media law boutique Shift Law, acted for the successful respondents in Boaden Catering Limited v. Real Food for Real Kids Inc. (RFRK).

Last summer, an Ontario Superior Court judge granted summary judgment to Simpson's client, RFRK, dismissing Boaden’s action in a dispute over website domain names.

Boaden appealed, claiming, among other things, that the judge’s refusal to grant a requested adjournment denied it procedural fairness. However, the Court of Appeal for Ontario sided with RFRK and upheld the decision.

“The main takeaway is trial judges have a very long leash when it comes to discretionary procedural decisions, such as whether to grant adjournments,” Simpson tells “We argued the appellants were trying to have their claims assessed on the merits when their entire case was really built on procedural complaints of one sort or another. And the Court of Appeal effectively said they wouldn’t do that.”

“The decision to grant or refuse an adjournment is discretionary and will only be interfered with if the judge has failed to take account of relevant factors and has exercised his or her discretion unreasonably, such that the decision is contrary to the interests of justice,” the three-judge panel wrote in their unanimous decision dismissing Boaden’s appeal. “There is no reason in this case to interfere with the exercise of discretion by the motions judge in refusing to adjourn the summary judgment motion."

The dispute has its roots in Boaden’s registration of several domain names; including and, which include elements similar or identical to trademarks or trade names held by RFRK.

After RFRK complained to the Internet Corporation for Assigned Names and Numbers and the Canadian Internet Registration Authority, arbitrators at both organizations ruled that Boaden had no interest in the domain names and that it had registered them in bad faith.

Boaden responded by launching an action against RFRK in Superior Court, seeking a declaration that it was the lawful owner of the web addresses.

But in June last year, Justice John Sproat dismissed Boaden’s case. At the appeal court, Boaden argued Sproat made an error of law by failing to apply the correct test for domain name disputes, pointing to the case of Black v. Molson Canada, in which the court referenced the criteria for transferring a .com domain name.

The appeal court dismissed the argument as having “no merit,” but Simpson says he would have liked the panel to weigh in more deeply on the matter, considering how rarely disputes over domain names come before courts at that level.

"There is uncertainty about what role the courts play in making determinations over domain name entitlements, so it would have been helpful to lawyers in the area to have some comments on the subject,” he says.

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