A Tale Of Two Citruses: BCCA Weighs In On When An Abuse Of Process Claim Is Ripe For Determination

When will seeking injunctive relief against a non-party amount to abuse of process? At what stage in a proceeding should that determination be made? The British Columbia Court of Appeal addressed these questions in Tangerine Financial Products Limited Parternship v. The Reeves Family Trust, the result being that it is easier, both substantively and procedurally, for non-parties to oppose such remedies on a preliminary basis.

Background

In December 2012, RSP Generation Limited Partnership ("RSP") bought the assets of Tangerine LP, which had previously been sold as part of a receivership proceeding. Among the assets sold was an investing strategy which Tangerine LP had originally obtained from Tangerine Financial Products Corp., along with consent to use the name "Tangerine Financial Products" until a time when Tangerine LP was dissolved.

In 2013, Scotiabank changed the name of its recently-acquired subsidiary ING Bank to Tangerine, and applied to register various trade-marks related to the new name. RSP notified Scotiabank of its objection to the name Tangerine, and applied to register its own Tangerine trade-marks.

In March 2014, RSP filed a notice of application in the Tangerine LP receivership proceedings seeking an order restraining Scotiabank and ING (neither of whom were parties to the proceedings) from using the Tangerine name. RSP relied on a provision in the vesting order approving the sale of Tangerine LP's property which states:

That every person having notice of this Order shall not take any steps to appropriate, interfere with, or use without the written permission of the Purchaser any part of the Assets, undertaking, goodwill, know how or intellectual property purchased hereby.

In response, Scotiabank brought a notice of application seeking to strike RSP's application on the basis that it consituted an abuse of process. In essence, Scotiabank submitted that RSP was attempting to obtain the benefit of a successful passing off action without the necessity of bringing one let alone proving its case.

The application judge Justice Smith dismissed Scotiabank's application, holding that it was not plain and obvious that RSP's application was an abuse of process, and that the issue should be left for the judge to decide on the merits. Justice Smith agreed with Scotiabank that if RSP succeeds in its application, it would have succeeded in a passing off claim without having to prove its case in the normal way. For that reason, Justice...