Date: 20010528
Docket: T-2006-99
Neutral citation: 2001 FCT 532
Between:
CAMOPLAST INC.
Plaintiff/
Defendant by Counterclaim
AND
SOUCY INTERNATIONAL INC.
Defendant/
Plaintiff by Counterclaim
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the defendant, under rule 75 of the Federal Court Rules, 1998, (the Rules) to amend its statement of defence and counterclaim (the defence) to incorporate paragraphs 16.1, 17(viii), (ix) and (x), 18.1 and 18.2. Those paragraphs may be summarized as follows:
[TRANSLATION]
Par. 16.1: production of the U.S. patent file that corresponds to the patent in issue before this Court;
Para. 17 viii, ix and x: add three other endless tracks as references, which provide very strong support for the arguments that the patent in issue is invalid;
Para. 18.1: a statement that the witness participated in the research project that led to the Lecours patent application, which is already alleged in paragraph 18(d) of the statement of defence;
Para. 18.2: a statement that the plaintiff knew that AKTIV snowmobiles have not been manufactured since 1991-1992.
[2] With regard to the principles that apply to amendments to pleadings, the following passage from Canderel Ltée v. Canada, [1994] 1 F.C 3 (C.A.), at page 10, clearly demonstrates the liberal approach that must be taken by the Court:
...while it is impossible to enumerate all the factors that a judge must take into consideration in determining whether it is just, in a given case, to authorize an amendment, the general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice.
[3] In addition to what was said there, it should be noted, to provide the backdrop, that an amendment, like a motion to strike, must be allowed unless it is patently clear that the amendment in question will fail (see Raymond Cardinal et al. v. Her Majesty the Queen, unreported decision from the Federal Court of Appeal, dated January 31, 1994, file A-294-77, Heald, Décary and Linden JJ.A.).
[4] In Visx v. Nidek, [1998] FCJ No. 1766, the Federal Court of Appeal also revived what was said in an 1886 decision:
The rule of conduct of the Court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed, if it can be made without prejudice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made.
[5] In this case, the defendant first filed its motion in December 2000 by a written motion under rule 396. I dismissed that motion and Mr. Justice Blais of the Trial Division upheld my decision on the record that was before me. (It should be noted that the defendant appealed the decision of Blais J. The impact of that appeal will be discussed later.)
[6] In my view, the decision of Mr. Justice Blais, together with the principles set out above, must essentially guide our decision in this case.
[7] In his decision, Blais J. notes that one of the ways in which new facts were brought before the Court was the affidavit of André Deland dated February 2, 2001. As previously mentioned, however, Blais J. was not able to take that affidavit into account because he was required to assess my decision on the record that was before me. There is reason to believe that the Deland affidavit is similar to the Deland affidavit of
April 3, 2000, that was filed in support of this motion.
[8] However, it appears from the reasons of Blais J. that he in fact considered the Deland affidavit since he went to the trouble of describing its entire content, knowing full well that he could not rely on it in making his decision.
[9] At paragraph 20 of his decision, Blais J. noted, as previously mentioned, that the affidavit seemed to provide a number of new facts.
[10] At paragraph 24 of his decision, Blais J. pointed out: [TRANSLATION] "It will be entirely open to the defendant to file a new motion to amend if it wishes to submit new facts to the Court that might justify an amendment; . . . ."
[11] I take it from the reasons of Blais J. that when he spoke of a motion based on new facts, he was in fact inviting the defendant to refile a motion to amend based on the defendant's entire record before him. The new facts referred to by Blais J. can therefore be considered to be the facts that were related by Deland but that the defendant had unfortunately failed to mention at the time the motion under rule 369 was initially filed.
[12] The decision of Blais J. allowing a new motion to amend to be filed means that my decision of January 24, 2001, is not res judicata as it would otherwise have been.
[13] The plaintiff opposes the motion in this case not because it was filed late--an argument that would not have stood up under Visx, supra--but because, it says, Deland's statement that he had become aware of the new facts only at the examinations on discovery that were held by both sides in the case is false. The plaintiff submits that Deland was aware of those facts prior to that time.
[14] I cannot accept the plaintiff's argument in this case because it has not been established that the plaintiff's assessment of the facts was clearly correct. We cannot rule out with certainty from the transcript of the examination on Deland's affidavit of
April 3, 2001, that Deland became aware of the new facts during the period from May 9 to June 15, 2000. We therefore cannot conclude that the statements made by Deland in his affidavit are false and dismiss this motion on that basis.
[15] Having regard to the factors set out in Canderel, supra, I believe that it would be just and would serve the interests of justice to allow the amendments sought by the defendant. It should be noted, moreover, that the plaintiff failed to prove that those amendments would cause it irreparable harm within the meaning of Canderel.
[16] Finally, I believe that the approach chosen here--allowing the motion--is closest to the principles set out in rule 3. It is clear from what counsel for the defendant said in court that the defendant will abandon the appeal against the decision of Blais J. once the order accompanying these reasons has become final. The disposition of this motion will allow us to avoid getting bogged down with problems arising from concurrent proceedings. If that had in fact been our focus as the starting point in our analysis, we would have had to seriously consider adjourning the defendant's motion sine die until the appeal from the decision of Blais J was resolved. That would have considerably delayed the timely and economical progression of the case.
[17] Costs in this motion will be awarded to the plaintiff because, inter alia, the plaintiff had to put together a motion record that included quite a few of the relevant documents, since the defendant had failed to include those documents in its record.
[18] An order to that effect will issue.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
May 28, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:
STYLE OF CAUSE:
T-2006-99
CAMOPLAST INC.
Plaintiff/
Defendant by Counterclaim
AND
SOUCY INTERNATIONAL INC.
Defendant/
Plaintiff by Counterclaim
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:May 14, 2001
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER:May 28, 2001
APPEARANCES:
| Jean Carrière Annie Cormier |
For the Plaintiff/Defendant by Counterclaim |
|
| Philippe Leroux Jean-Nicolas Delage |
For the Defendant/Plaintiff by Counterclaim |
|
SOLICITORS OF RECORD:
| Mendelsohn Rosentzveig Shacter Montréal, Quebec |
For the Plaintiff/Defendant by Counterclaim |
|
| Brouillette Charpentier Fortin Montréal, Quebec |
For the Defendant/Plaintiff by Counterclaim |
Federal Court of Canada
Trial Division
Date: 20010528
Docket: T-2006-99
Between:
CAMOPLAST INC.
Plaintiff/
Defendant by Counterclaim
AND
SOUCY INTERNATIONAL INC.
Defendant/
Plaintiff by Counterclaim
REASONS FOR ORDER
Date: 20010528
Docket: T-2006-99
MONTRÉAL, QUEBEC, THE 28th DAY OF MAY 2001
Present: RICHARD MORNEAU, PROTHONOTARY
Between:
CAMOPLAST INC.
Plaintiff/
Defendant by Counterclaim
AND
SOUCY INTERNATIONAL INC.
Defendant/
Plaintiff by Counterclaim
ORDER
The defendant is allowed ten days from the date of this order to serve and file an amended statement of defence and counterclaim similar to Exhibit "A" of the affidavit of André Deland dated April 3, 2001.
On the question of the deadlines to be met for any future step remaining to be taken in the case, the parties shall, within 20 days of the date of this order, submit a timetable to the Court, jointly if possible, covering the remaining steps to be taken in this case. Any
Page: 2
timetable proposed by the parties shall be limited to essential steps and reflect the intention to expedite this matter.
Costs of the motion to the plaintiff.
Richard Morneau
Prothonotary
Certified true translation
Sophie Debbané, LL.B.