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Digest of the Week — Can't Appeal on Issues Not Raised at Trial

IProperty Inc. v. SR Websports Inc. |
2015 CarswellBC 3764 |
British Columbia Supreme Court

Civil practice and procedure | Practice on appeal | Powers and duties of appellate court | Miscellaneous

Plaintiff law firm, specializing in intellectual property, rendered services to defendants in connection with registration of trade-marks in Canada and United States — Dispute arose between parties about fees applicable to work done, with plaintiff claiming it advised defendants that that two applications would cost about $6,600 and defendants insisting they were quoted fee of $3,200 for both applications — Defendants paid $5,731.79 in legal fees before terminating plaintiff's services — Plaintiff's claim for outstanding legal fees in amount of $1,531.87 was dismissed, and defendants' counterclaim for breach of fixed fee contract was allowed in amount of $5,731.79 — Plaintiff appealed — Appeal allowed — Issue centred on fundamental nature of retainer agreement and whether it was for fixed sum or not — Trial judge did not make material error or seriously misapprehend evidence in preferring defendants' version of conversation over that of plaintiff's — Trial judge was not clearly wrong in reaching conclusions that she did — Plaintiff's ground of appeal relating to defendants' failure to mitigate damages was misconceived, as what defendants might have done with outstanding trademark applications had no relationship to mitigating amount of monies paid to plaintiff was without merit — What defendants were doing was continuing to pay invoices, while objecting to amounts charged, in effort to have registrations completed — Issue of mitigation was not raised before trial judge and that ground of appeal was without merit.
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