Litigator Ian Cantor was quoted in the article "Two Queen West retailers in bitters dispute" on a dispute between two retailers in West Queen West in Toronto. The article was published in the Toronto Star on September 25.

Two Queen West retailers in bitters dispute

Kristen Voisey, the owner of BYOB, is suing Steve Tracey, the owner of Organic Boutique, because she believes his business is trying to “pass off” as her own.

By Francine Kopun
Printed: Sunday, September 25, 2016 in The Toronto Star
Previously published by Toronto Star 

Kristen Voisey was visiting a friend in Los Angeles when she walked into a little shop called Bar Keeper that sold vintage glassware, bar tools and alcohol.

It was around the dawn of cocktail culture in Toronto and Voisey thought a similar concept would go over well in the quirky neighbourhood of West Queen West and as a happy by-product, create a venue for her to sell pieces from her own vintage glassware collection, which was taking over her parents’ basement in Caledon.

She took out a $60,000 line of credit and opened a store, called BYOB, at 972 Queen St. W. in 2011.

“The basic question is whether, directly or indirectly, Mr. Tracey is presenting his goods to the relevant consumers in a manner which conveys to the minds of those consumers the impression that they are the goods of BYOB,” wrote Voisey’s lawyer, Scott Crocco of Berkow, Cohen LLP, in response to questions from the Star.

It’s more than just a business dispute – it’s a matter of public interest, he added.

“Importantly, our courts have emphasized that passing off cases are affected with a public interest. A dealer's goodwill is protected, not merely for the protection of her business interests, but in order that the purchasing public may not be enticed and deceived into buying A's product when it wants B's product,” according to Crocco.

Tracey said his store, a specialty food retailer, opened in 2004, and was stocking cocktail ingredients long before Voisey arrived on the scene.

“We were here before this neighbourhood was cool,” said Tracey, in an interview with the Star, adding that Voisey is the one who copied him.

“She would come over here and she would buy a gluten-free cookie for $2.75 and then she started switching over, she stole (ideas) – the first thing she took for her establishment was a . . . tonic.”

The most recent trigger for Voisey was a negative review on Google from a woman who thought she was at BYOB.

“He is deceiving people,” wrote Voisey, in a post to the store’s Facebook page that featured a photograph of the bad review, and an explanation.

“People ask all the time if we’re affiliated, if we’re the same store,” said BYOB store manager Grainne O’Flynn.

The dispute is outlined in the lawsuit filed by Voisey in Ontario Superior Court in 2014.

In it, she alleges that in early 2013, Organic Boutique, which had been operating as a retailer of organic foods and related products, began to sell products similar to and in some cases identical to, products sold by BYOB.

She claims Organic Boutique’s storefront was changed to look substantially like BYOB, including painting over the Organic Boutique signage and designing window displays comprised solely of products displayed and sold by BYOB. (Voisey has since painted her storefront pink, to differentiate her store.)

Organic Boutique began placing signs with “Y.O.B. Inc.” and also press articles about BYOB in the window of the store, creating confusion, the lawsuit alleges.

Also according to the lawsuit, Tracey falsely accused Voisey, in her own store and in front of customers, of engaging in sexual acts with her landlord.

Tracey’s actions, the lawsuit alleges, have not only caused Voisey’s business to suffer, but Voisey is herself also suffering from fear and emotional distress as a result of his actions.

“He is not sourcing his own products and building his own business, he is 100 per cent going after brands and products I sell exclusively and work really hard to bring to the city,” said Voisey in an interview with the Star.

“I am just trying to run my business, and having someone spend their entire being trying to steal it is soul crushing,” Voisey said.

Tracey, meanwhile, carries a picture on his mobile phone of a message he found on his store window in June 2014, scrawled in lipstick: “You are a dick. Buy bitters at BYOB.”

Voisey said she had nothing to do with that.

Tracey said that even if he were copying Voisey – and he is adamant he isn’t – you can’t stop Tim Hortons from opening up next to Starbucks.

“OB Inc. did not and does not have any need or reason to attempt to pass itself off as or imitate the plaintiff’s business or storefront,” Tracey’s lawyer, Ian Cantor of Minden Gross LLP, wrote in Tracey’s defence against the lawsuit.

“Contrary to the allegations . . . the selling of common products represents nothing more than a perfectly permissible and normal business competition in our free market economy.”

Tracey declined to be photographed and his lawyer responded in writing to a request from the Star for further details.

“Although Ms. Voisey has not taken any steps to move the lawsuit forward for the past two years, the matters in issue properly remain in the hands of the court, not the press, for determination. Mr. Tracey declines any further comment, with such declination not be taken as any acknowledgement of the accuracy of anything that Ms. Voisey may have said to you,” Cantor wrote.

Interest in cocktails continues to build in Toronto, according to Courtney Stewart, general manager of the Furlough restaurant and cocktail bar.

“It’s absolutely on the upswing. There are so many young people who are passionate about making it their craft, and taking it very seriously.”

Rob Berry, founder of the Bartending School of Ontario, believes that’s partly because fewer people are drinking to excess when they go out, so they’re willing to pay more for the one or two drinks they do have, in order to get something that will be a taste sensation without putting them through a hangover the next day.

The feud between Voisey’s business and Tracey’s is known in the neigbourhood and among mixologists in Toronto.

“We’re like a big family. We realize that people aren’t going to be happy all the time, always,” said Rob Sysak, executive director of the West Queen West Business Improvement Association, which represents more than 300 businesses.

Resident Josh Prout, who manages a nearby bar, says he’d like to see Voisey and Tracey patch things up.

“They got off on the wrong foot together and they just never sorted it out. Sometimes all you have to do is sit down and have a drink, which is ironic, given what they do.”

Voisey stocked her shelves with painstakingly sourced bar tools, syrups, tonics and bitters — Harry Potteresque vials of whimsical flavours, like peppercorn bacon, blood orange ginger, rhubarb, arugula and wormword that are a bartender’s secret weapon when it comes to concocting signature creations in a city enthusiastically embracing the return of the cocktail.

Voisey says BYOB was profitable within two years and that she hasn’t looked back. She opened a second store in Kensington Market, called ½ oz Cocktail Emporium.

It’s when she looks next door to her neighbour on Queen St. that she gets upset.

Voisey is suing her neighbour, Steve Tracey, owner of Organic Boutique at 970 Queen St. W., using a little-known legal argument that he is trying to “pass off” his store as her store, copying her moves so closely that customers are confused as to which store is which.