Date: 20030930
Docket: T-981-03
Citation: 2003 FC 1129
Montréal, Quebec, September 30, 2003
PRESENT: MR. RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
A. & D. PRÉVOST INC.
Plaintiff/
Defendant to counterclaim
and
GAMMA INDUSTRIES INC.
Defendant/
Plaintiff by counterclaim
REASONS FOR ORDER AND ORDER
[1] This is a motion by the plaintiff and defendant to counterclaim ("the plaintiff") by which it seeks essentially the following remedies:
(a) an order directing the defendant and plaintiff by counterclaim ("the defendant") to file a copy of the documents referred to in paragraphs 17, 22, 25, 26 and 27 of the defence and counterclaim ("the defence"), pursuant to Rule 206 of the Federal Court Rules, 1998 ("the Rules");
(b) an order directing the defendant to provide the plaintiff with particulars on the vague and inaccurate allegations contained paragraphs 35(a), (b), (d) and (e), 39 and 40 of the defence, pursuant to Rule 181;
(c) an order striking out in its entirety paragraph 32(c), (d) and (f) of the defence, since that paragraph discloses no valid cause of action, pursuant to Rule 221.
[2] On the documents sought in accordance with conclusion (a) above, since the defendant accepts that conclusion it will have to serve the said documents within 15 days of this order.
[3] On the particulars sought (paragraph (b) above), it would appear that the principles contained in Denharco Inc. v. Forespro Inc., [1999] F.C.J. No. 849, and Contour Optik Inc. v. Hakim Optical Laboratory Ltd. (2001), 201 F.T.R. 152, require that the particulars sought by the plaintiff on paragraphs 35, 39 and 40 of the defence must be provided. Accordingly, the said particulars, which are set out in the letter from counsel for the plaintiff dated September 2, 2003, will be filed within 30 days of this order.
[4] As to the situation involving paragraph 32(c), (d) and (f) of the defence, the plaintiff is seeking deletion since those parts of the paragraph concern claims which are not at issue in the instant case. It appears from the statement of claim filed and the conclusions sought by the plaintiff that only claims 1, 2, 3, 4, 7, 8, 10 and 11 of Canadian patent 2,249,513 are at issue. I do not see how it can be argued in the instant case, in support of keeping those parts of the paragraph in the defence, that the patent claims as a whole will have to be the subject of analysis. Accordingly, I feel that paragraph 32(c), (d) and (f) of the defence is not relevant and discloses no reasonable cause of defence. It is accordingly struck from the defence, without the defendant having to file an amended defence.
[5] Within 15 days of service of the particulars ordered above, the plaintiff will have to serve and file its reply and defence to the counterclaim.
[6] Costs on this motion are awarded to the plaintiff.
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"Richard Morneau"
Prothonotary |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT
Date: 20030930
Docket: T-981-03
Between:
A. & D. PRÉVOST INC. Plaintiff/ Defendant to counterclaim
and
GAMMA INDUSTRIES INC. Defendant/ Plaintiff by counterclaim
REASONS FOR ORDER AND ORDER
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-981-03
STYLE OF CAUSE: A. & D. PRÉVOST INC.
Plaintiff/
Defendant to counterclaim
and
GAMMA INDUSTRIES INC.
Defendant/
Plaintiff by counterclaim
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 29, 2003
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: September 30, 2003
APPEARANCES:
François M. Grenier for the plaintiff (defendant to counterclaim)
Annie Labrecque for the defendant (plaintiff by counterclaim)
SOLICITORS OF RECORD:
Léger, Robic, Richard for the plaintiff (defendant to counterclaim)
Montréal, Quebec
Heenan, Blaikie, Aubut for the defendant (plaintiff by counterclaim)
Québec, Quebec