Date: 19991230
Docket: T-1629-98
MONTREAL, QUEBEC, THIS 30th DAY OF DECEMBER 1999
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
Between:
CORETECH-SONOCO LIMITED
Plaintiff
AND
CSI CORE SPECIALTIES INC.
Defendant
_______________________________________
CSI CORE SPECIALTIES INC.
Plaintiff by Counterclaim
AND
CORETECH-SONOCO LIMITED
Defendant by Counterclaim
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This is a motion by the Defendant (and Plaintiff by Counterclaim) to amend its Defence to include a final paragraph asking for dismissal of the Plaintiff's action, and to amend its Counterclaim to include a cause of action based upon the Plaintiff's alleged false and misleading representations tending to discredit the business and wares of the Defendant.
[2] As to the amendment to the Defence, it has not been contested by the Plaintiff and it merits to be granted without more debate.
[3] As to the amendment to the Counterclaim, it cannot be granted in my view because contrary to rule 201 of the Federal Court Rules, 1998, the Defendant's new cause of action cannot be considered as arising out of substantially the same facts as its existing Counterclaim.
[4] Rule 201 reads as follows:
| 201. An amendment may be made under rule 76 notwithstanding that the effect of the amendment will be to add or substitute a new cause of action, if the new cause of action arises out of substantially the same facts as a cause of action in respect of which the party seeking the amendment has already claimed relief in the action. |
[5] The Defendant's existing Counterclaim deals with the alleged passing off by the Plaintiff of its metal end caps and with nothing else substantially. (See Francoeur v. Canada, [1992] 2 F.C. 333, at 337, where the Court of Appeal considered the application of former rule 427, the predecessor of rule 201. See also Martel Building Ltd. v. Canada, [1998] 4 F.C. 300, at 313 par. 24.)
[6] Costs of this motion to the Plaintiff.
Richard Morneau
Prothonotary
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-1629-98
CORETECH-SONOCO LIMITED
Plaintiff
AND
CSI CORE SPECIALTIES INC.
Defendant
__________________________
CSI CORE SPECIALTIES INC.
Plaintiff by Counterclaim
AND
CORETECH-SONOCO LIMITED
Defendant by Counterclaim
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:December 20, 1999
REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:December 30, 1999
APPEARANCES:
| Ms. Elyssa N. Wortzman
|
for the Plaintiff/Defendant by Counterclaim
|
| Mr. Richard S. Levy
|
for the Defendant/Plaintiff by Counterclaim
|
| SOLICITORS OF RECORD:
|
|
| Blake, Cassels & Graydon
Ms. Elyssa N. Wortzman
Toronto, Ontario
|
for the Plaintiff/Defendant by Counterclaim
|
| Spiegel Sohmer
Mr. Richard S. Levy
Montreal, Quebec
|
for the Defendant/Plaintiff by Counterclaim
|
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