|
Federal Court
|
|
Cour fédérale
|
Date: 20090608
Docket: T-56-06
Citation: 2009
FC 592
Ottawa, Ontario,
June 8, 2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
HELI TECH SERVICES (CANADA) LTD.
AND CORPORACION LA CAMPANA
DE LA VILLA S.A.
AND PHILIP JARMAN
Plaintiffs
and
WEYERHAEUSER COMPANY LIMTED/
COMPANIE WEYERHAEUSER LIMITEÉ
DOING BUSINESS AS CASCADIA
FOREST PRODUCTS
AND DOING BUSINESS AS
ISLAND TIMBERLANDS
AND CASCADIA FOREST PRODUCTS LTD.
AND ISLAND TIMBERLANDS GP LTD.
AND TIMBERWEST FOREST CORP.
AND BRASCAN TIMBERLANDS MANAGEMENT GP
INC.
AND 550777 B.C. LTD. OPERATING AS
"R.E.M. CONTRACTING"
AND CANADIAN AIR-CRANE LIMITED AND VIH
LOGGING LTD.
AND INTERNATIONAL FOREST PRODUCTS LIMITED
Defendants
AND
BETWEEN:
VIH LOGGING LTD.
Plaintiff by Counterclaim
and
HELI TECH SERVICES (CANADA) LTD.
AND CORPORACION LA CAMPANA DE LA VILLA
S.A.
AND PHILIP JARMAN
Defendants by Counterclaim
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
The
defendants Brascan Timberlands Management GP Inc. and Island Timberlands GP
Ltd. asked Prothonotary Lafrenière to strike various paragraphs of the plaintiffs’
statement of claim primarily on the grounds that they did not disclose a
reasonable cause of action against them. Prothonotary Lafrenière granted their
request in an order dated November 21, 2008. The plaintiffs appeal that order. They
argue that Prothonotary Lafrenière wrongly concluded that the plaintiffs had
failed to set out in their statement of claim material facts that would support
their assertion that Brascan and Island Timberlands were liable for patent
infringement.
[2]
The patent
in issue involves a particular form of helicopter logging referred to as the
“standing-stem” method. Standing-stem logging involves preparing a single tree
for harvesting by topping and disbranching it, making horizontal cuts in the
trunk, stabilizing the trunk with wedges, and then plucking the stem from above
after a helicopter has lowered and attached a grapple to it. The patent covers
both the grapple and the method itself.
[3]
The
plaintiffs allege that Brascan and Island Timberlands breached their patent
either by employing this method themselves or by inducing others to do so. They
submit that the omissions in their previous statement of claim (and amendments
thereto) have been corrected in their second further amended statement of claim
(FASOC #2) and suggest that Prothonotary Lafrenière erred by failing to
recognize that the problems with earlier versions of the statement of claim
have now been corrected.
[4]
Prothonotary
Lafrenière found that the allegations against Brascan amounted to “bald
assertions without any material facts”. Further, he concluded that the evidence
before him on the motion did not disclose any direct infringement or attempted
inducement by Brascan. Similarly, he found that the evidence in respect of
Island Timberlands showed that a subcontractor was responsible for
standing-stem logging, not
Island Timberlands. Further, there
was no evidence that Island Timberlands had induced any infringement by a subcontractor.
[5]
Brascan
and Island Timberlands submit that the FASOC #2 suffers from the same defects
as the earlier pleadings and argue that Prothonotary Lafrenière was correct to
strike the allegations against them.
II. Standard of Review
[6]
Given that
the question before Prothonotary Lafrenière was vital to a final issue (i.e.,
whether the action can be continued against Brascan and Island Timberlands), I
must consider the question de novo: AstraZeneca Canada Inc. v. Apotex
Inc., 2005 FC 43, at para. 6.
III. Valid Pleadings
[7]
A
statement of claim must set out facts supporting the plaintiff’s claim to a
particular legal right, as well as facts showing that the defendant has
infringed that right: Dow Chemical Co. v. Kayson Plastics &
Chemicals Ltd. (1966), 47 C.P.R. 1 (Ex. Ct). In an action for patent
infringement, the plaintiff must set out facts describing the defendant’s
allegedly infringing behaviour. It is not sufficient simply to allege that the
defendant has infringed the claims of the patent: Harrison v. Sterling
Lumber Co., 2008 FC 220. Nor can a plaintiff simply make speculative
allegations in the hope of learning more at the discovery stage of the action: Caterpillar
Tractor Co. v. Babcock Allatt Ltd. (1982), 67 C.P.R. (2d) 135
(F.C.T.D.), at 138-139.
[8]
The test
on a motion to strike pleadings in a statement of claim is whether it is “plain
and obvious” that the plaintiff cannot succeed against the defendant in respect
of the particular allegations set out: Prentice v. Canada (Royal Canadian Mounted
Police), 2005
FCA 395, at para. 23.
IV. The Plaintiffs’ Allegations
[9]
The
plaintiffs allege that, since 2005, Brascan and Island Timberlands have used
the standing-stem method in the Elsie
Lake area of Vancouver
Island (FASOC
#2, para. 53, paragraphs cited are set out in Annex A). The plaintiffs also
allege that the defendants have, as a whole, infringed the patent by using a
technique that corresponds with the methodology set out in it (FASOC #2, para.
59). The FASOC # 2 sets out a full description of that methodology (paras.
57.1, 57.2).
[10]
The
plaintiffs also maintain that Island Timberlands induced “an unknown
contractor” to carry out standing-stem logging in a manner that infringed the
patent by hiring the contractor to do so (FASOC #2, para. 60 (e)).
V.
The
Prothonotary’s Decision
[11]
Prothonotary
Lafrenière reviewed the pleadings, the written submissions of the parties and
the evidence filed on the motion. As mentioned, he concluded that the
allegations in the FASOC #2 against Brascan amounted to “bald assertions
without any material facts” and without any evidence to support them. In
particular, he found no evidence of either direct infringement or inducement.
[12]
With
respect to Island Timberlands, Prothonotary Lafrenière found that the
plaintiffs’ allegations were more detailed and ought not to be struck under
Rule 221(1)(a) (see Annex B) (for failure to disclose a reasonable cause
of action). However, he also found no evidence to support the allegation that Island
Timberlands induced anyone to infringe the patent or that it was itself
responsible for any infringement. The evidence on those issues related to
alleged infringement by a contractor named R.E.M. Contracting, not Island Timberlands.
VI. Conclusion and Disposition:
[13]
The
plaintiffs point out that it is extremely difficult to establish a foundation
for their allegations, given that standing-stem logging typically takes place
in remote areas. Further, they suggest that the liability of Brascan and Island
Timberlands can be inferred from the corporate relationships among various
defendants (including Weyerhauser, Cascadia, Island Timberlands and Brascan);
the movement of employees from one company to another; their stewardship of
large logging operations; and their agency relationships with subcontractors.
Further, the plaintiffs note that Brascan and Island Timberlands are
sophisticated companies that could easily evade liability by using
subcontractors with limited resources as shields.
[14]
I have
considered the plaintiffs’ circumstances and observations, but cannot conclude
that they merit a departure from the requirements of sufficiency of pleadings.
Further, after reviewing the materials presented to Prothonotary Lafrenière, as
well as those submitted to me, I can find no error in his decision. The pleadings
clearly fail to set out material facts supporting the allegations of direct
infringement and inducement. In my view, it is plain and obvious that the
plaintiffs cannot succeed against Brascan or Island Timberlands in respect of
the allegations set out in the pleadings. To conclude otherwise would be to
permit the plaintiffs to use the discovery process to explore potential grounds
for their infringement action. This the Court cannot permit.
ORDER
THIS COURT ORDERS that:
- The appeal is dismissed with costs.
- Prothonotary Lafrenière’s Order of
November 21, 2008 is affirmed.
“James W. O’Reilly”
Annex “A”
Second Further Amended Statement of Claim
(FASOC #2), original amended filed March 2, 2006
53.
Based on information provided to it by Weyerhaeuser, The Defendant, Brascan, in
the Elsie Lake area of Vancouver Island, has used the helicopter single
stem harvesting system in its logging of timber since at least as early as
2005, with the Defendants Cascadia and Island Timberlands, which is the method
covered by one or more of the claims of the Harvesting Patent.
57.1
The
Defendants used the helicopter single stem harvesting system covered by the Harvesting
Patent by employing a method for preparing and harvesting logs by means of a
helicopter equipped with a suspended grapple, removing trees from the forest by
lifting them off of their stumps rather than harvesting them after they have
been felled. Under the method employed by the Defendants, a standing tree is
topped, the branches removed, and the trunk cut near ground level on at least
two sides, leaving holding wood connecting the log to the stump to stabilize
it. When the helicopter is above the log and the grapple is beside the top of
the log, the grapple is engaged to secure the log and a generally horizontally
directed force is applied to the top of the log so as to rupture the holding
wood and flying the helicopter with the suspended log to a selected collection
area.
57.2
Further
particulars on the use by the Defendants of the standing stem harvesting system
covered by the Harvesting Patent include:
(a)
In
relation to the first aspect of the invention, the Defendants employed a method
of harvesting a log using an airborne vehicle equipped with a suspended grapple
comprising topping and disbranching the tree, cutting the tree near ground
level on at least two sides of the trunk leaving holding wood connecting the
log to the stump, stabilizing the trunk with select described methods, moving
the airborne vehicle to a position above the log with the grapple beside the
top of the log, applying a generally horizontally directed force to the top of
the log to rupture the holding wood, flying the airborne vehicle with the
suspended log to a collection area, and releasing the log at the collection
area.
(b)
In
relation to the second aspect of the invention, the Defendants used a tree
harvesting grapple for helicopters comprising: a support member having a top
and two sides, a wing connected to each side of the support member and
extending outwardly therefrom forming a tree receiving recess between the wings
and the support member, and a grapple pivotally connected to each wing with the
arms being movable from an open position to a closed position extending across
the recess to retain trees in the grapple.
(c)
In
relation to the fourth aspect of the invention, the Defendants employed a
method of preparing a tree for standing-stem harvesting directly from the stump
comprising: topping the tree, cutting through the trunk to make a pair of
horizontal saw cuts parallel to one another and separated by holding wood, and
driving in support wedges to stabilize the trunk.
59. By
reason of the use by the Defendants of the helicopter single stem harvesting
system the Defendants have infringed the exclusive right, privilege and liberty
of the Plaintiffs in one or more of Claims #1 through 35 of the Harvesting
Patent.
60. The
Defendants and each of them, with the exception of the Defendant, VIH Logging
Ltd., have induced infringement of method Claims #1-16 and #26-35 of the
Harvesting Patent doing the following:
[…]
(e) The
Defendant, Island Timberland, induced an
unknown contractor to employ the methods of the inventor as set out in
paragraphs 31, 32, 34 and 57.1, by hiring them to harvest timber in a manner,
or acting recklessly knowing that they would employ the methods of the
inventor, that they would infringe on the Plaintiffs’ patent rights.
Annex “B”
|
Federal
Courts Rules,
SOR98/106
Motion to strike
221. (1) On motion, the Court may, at any time, order
that a pleading, or anything contained therein, be struck out, with or
without leave to amend, on the ground that it
(a) discloses no reasonable cause of action or defence, as the
case may be,
(b) is immaterial or redundant,
(c) is scandalous, frivolous or vexatious,
(d) may prejudice or delay the fair trial of the action,
[…]
(f) is otherwise an abuse of the process of the Court,
and may order
the action be dismissed or judgment entered accordingly.
.
|
Règles des Cours fédérales, DORS/98-106
Requête en
radiation
221. (1) À tout moment, la Cour peut, sur requête,
ordonner la radiation de tout ou partie d’un acte de procédure, avec ou sans
autorisation de le modifier, au motif, selon le cas :
a) qu’il ne
révèle aucune cause d’action ou de défense valable;
b) qu’il
n’est pas pertinent ou qu’il est redondant;
c) qu’il est
scandaleux, frivole ou vexatoire;
d) qu’il
risque de nuire à l’instruction équitable de l’action ou de la retarder;
…
f) qu’il
constitue autrement un abus de procédure.
Elle peut
aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en
conséquence.
|
Email this Content