Date: 20011024
Docket: T-1875-00
Neutral citation: 2001 FCT 1157
BETWEEN:
MERANGUE INTERNATIONAL LIMITED
Plaintiff
and
BUFFALO EASTCANTRA INC.
Defendant
RICHARD MORNEAU, ESQ., PROTHONOTARY
[1] This is a motion by the Defendant under Rule 221(1)(a) for an order striking out:
- The last sentence of paragraph 3 of the particulars provided by the Plaintiff on May 10, 2001 in response to the Order for particulars of this Court dated April 30, 2001 (hereinafter paragraph 3);
- Paragraphs 1c) and 15 to 21 of the Plaintiff's Statement of Claim.
[2] Dealing first with paragraph 3, said paragraph was further particularized by the Plaintiff on May 30, 2001. Essentially, these particulars, which are to be taken as being true for the purpose of the motion at bar, allege that the Defendant asserted one position during the prosecution of its design with respect to the scope of the latter while at the same time and prior, the Defendant had taken a different position towards potential infringers.
[3] These particulars are sufficient in my opinion to sustain that it is not clear and obvious at this juncture that paragraph 3 as particularized cannot sustain a cause of action for fraud on the Office of the Commissioner of Patents. Consequently, paragraph 3 shall not be struck out.
[4] As for paragraphs 1c) and 15 to 21 of the Plaintiff's Statement of Claim, one cannot say that on their face they do not disclose any reasonable cause of action. In order for the Defendant to sustain such conclusion, it must rely on an affidavit it filed in support of its motion. However, the motion at bar is not one which puts in issue the jurisdiction of the Court towards the Plaintiff's claim. Therefore, the Court cannot rely on the case of Cameron v. Ciné St-Henri Inc., [1984] 1 F.C. 421, at 426, to allow evidence to be considered against the wording of the impugned paragraphs which has to be taken to be true for the purpose of the motion at bar.
[5] Consequently, paragraphs 1c) and 15 to 21 of the Plaintiff's Statement of Claim shall not be struck out.
[6] Although the Defendant's motion record is not so specific, at the hearing the Defendant alleged that paragraph 18 of the Plaintiff's Statement of Claim is a bare conclusion of law containing no material facts. This position now taken by the Defendant appears to me to be an after-thought since no particulars were requested in the past by the Defendant although it had the chance to require some. Therefore, I shall not order the strike out of said paragraph 18.
[7] For the above reasons, the Defendant's motion is denied with costs.
[8] The Defendant shall have fifteen (15) days from the date of this Order to serve and file its Statement of Defence and Counterclaim.
Richard Morneau
Prothonotary
Montreal, Quebec
October 24, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011024
Docket: T-1875-00
BETWEEN:
MERANGUE INTERNATIONAL LIMITED
Plaintiff
and
BUFFALO EASTCANTRA INC.
Defendant
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1875-00
STYLE OF CAUSE:
MERANGUE INTERNATIONAL LIMITED
Plaintiff
and
BUFFALO EASTCANTRA INC.
Defendant
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 23, 2001
REASONS FOR ORDER AND ORDEROF: RICHARD MORNEAU, ESQ., PROTHONOTARY
DATED: October 24, 2001
APPEARANCES:
|
Mr. Bruce W. Stratton |
FOR THE PLAINTIFF |
|
Mr. Christian Bolduc |
FOR THE DEFENDANT |
SOLICITORS OF RECORD:
|
Dimock Stratton Clarizio Toronto, Ontario |
FOR THE PLAINTIFF |
|
Smart and Biggar Montreal, Quebec |
FOR THE DEFENDANT |