Date: 20050316
Docket: T-1692-02
Citation: 2005 FC 362
BETWEEN:
LES INVENTIONS ARMAND MORIN INC.
et ÉQUIPEMENT QUADCO INC.
Plaintiffs/
Defendants by Counterclaim
- and -
RISLEY MANUFACTURING LTD.
Defendant/
Plaintiff by Counterclaim
REASONS FOR ORDER
PINARD J.:
[1] This motion relates to a patent infringement action commenced by Statement of Claim dated October 3, 2002. The Plaintiffs/Defendants by Counterclaim (the "Plaintiffs") have alleged infringement of Canadian Patent No. 1,269,028 (the "Patent"), which relates to a saw tooth.
[2] The Defendant/Plaintiff by Counterclaim (the "Defendant") delivered a demand for particulars to the Plaintiffs on September 7, 2004 seeking particulars concerning the Plaintiffs' allegations of infringement in the Statement of Claim. There has not yet been any document discovery or examinations for discovery.
[3] The Defendant filed the present motion on September 29, 2004. In summary, the Defendant seeks an Order under Rule 221(1)(a) of the Federal Court Rules, 1998, SOR/98-106, striking out the Statement of Claim in its entirety on the basis that it discloses no reasonable cause of action. In the alternative, the Defendant seeks an Order striking out paragraphs 11-15 of the Statement of Claim. In the further alternative, the Defendant seeks an Order compelling the Plaintiffs to serve further and better particulars concerning the Plaintiffs' allegations of infringement, as set out in the Notice of Motion. The Defendant also seeks an Order under Rule 107 that the issues of damages and profits be the subject of a separate post-trial hearing, and an Order extending the dates set out in the August 4, 2004 scheduling Order of the Court concerning the completion of steps in this proceeding.
Bifurcation Order
[4] I have no objection to an Order being made under Rule 107 of the Federal Court Rules, 1998, since the Plaintiffs have finally agreed to such an Order. The original Statement of Claim in this matter was filed in 2002, and such an Order will hopefully conserve time and resources for both parties. Indeed, such an Order under Rule 107 should alleviate some of the problems sworn in the Affidavit of William Peter Danilowich, which states that it will be time consuming to go through old sales receipts and to identify and produce all documents pertaining to the sale of saw teeth.
Striking the Statement of Claim
[5] A statement of claim should be struck only if it is plain and obvious that it discloses no reasonable cause of action (see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980).
[6] I see no reason to strike either the Statement of Claim in its entirety or paragraphs 11-15. The general principle retained by the Court is that a motion for striking a statement of claim should not be granted if the moving party has responded to the proceeding (Control Data Canada Ltd. v. Senstar Corp. (1988), 23 C.P.R. (3d) 421 (F.C.T.D.)). The Defendant filed its Statement of Defence on January 30, 2004, and did not file the present motion until September 29, 2004. More specifically, the Defendant, at paragraph 11 of the Statement of Defence, admits manufacturing, distributing and selling saw teeth, but denies infringing the Patent. At paragraph 12, the Defendant explains why the saw teeth in question are distinguishable from the Plaintiffs'. It is difficult for the Defendant to successfully argue that the Statement of Claim does not disclose a reasonable cause of action, since it not only denies infringing the Patent with reference to its saw teeth, but distinguish its product from the patented product with reference to a pin integrally attached to the head of the saw tooth.
Particulars
[7] The Defendant recognizes that while it is unusual to order particulars in favour of a defendant who has already filed a statement of defence, the Court has done so where it was in the interests of the administration of justice that both parties better particularize their positions, in order that the issues may be narrowed and more clearly defined by the pleadings and that time and expense be saved in discoveries, preparation for trial, and the trial (Ciba-Geigy Canada Ltd. v. National Contact To Go Ltd. et al. (1992), 41 C.P.R. (3d) 131 (F.C.T.D.)). I agree with the case law in this regard, however, do not think it is applicable in the present case. As I stated earlier, the Defendant not only denies infringing the Patent, but distinguishes its product from the patented product with reference to a pin integrally attached to the head of the saw tooth. The Defendant also pleads that its products were manufactured and sold with licences, which implies that it is aware of which of its products allegedly infringe Patent No. 1,269,028. Furthermore, the case has already lasted for more than two years and to order particulars, would require a change to the timetable already set out by this Court which would unduly prolong what has already been lengthy proceedings. Finally, the Defendant, in the circumstances, ought to have filed an affidavit in support of its request for particulars, which was not done (see Dow Chemical Co. v. Kayson Plastics & Chemicals Ltd. (1966), 47 C.P.R. 1 at 8 (Ex. Ct.)).
[8] It is for the above reasons that I grant an Order under Rule 107 of the Federal Court Rules, 1998, but deny the remainder of the motion, with costs in the cause. Accordingly, each of the dates for the parties to complete the steps 3 to 10 set out in the Order of this Court dated August 4, 2004, with respect to the steps remaining to be taken in this proceeding, shall be extended by the same period of time corresponding to that included between the date of September 10, 2004 in step 3 of the Order and the expiration of the 15th day after the date of the Order supported by these Reasons.
JUDGE
OTTAWA, ONTARIO
March 16, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1692-02
STYLE OF CAUSE: LES INVENTIONS ARMAND MORIN INC. et ÉQUIPEMENT QUADCO INC. v. RISLEY MANUFACTURING LTD.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 22, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATED: March 16, 2005
APPEARANCES:
Mr. Jean-Sébastien Brière FOR THE PLAINTIFFS/DEFENDANTS BY COUNTERCLAIM
Mr. Craig A. Ash FOR THE DEFENDANT/PLAINTIFF BY COUNTERCLAIM
SOLICITORS OF RECORD:
SMART & BIGGAR FOR THE PLAINTIFFS/DEFENDANTS BY
Montréal, Quebec COUNTERCLAIM
OYEN WIGGS GREEN & MUTALA FOR THE DEFENDANT/PLAINTIFF BY
Vancouver, British Columbia COUNTERCLAIM
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