Docket: T-775-16
Citation:
2016 FC 1129
Ottawa, Ontario, October 11, 2016
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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ELBIT SYSTEMS
ELECTRO-OPTICS ELOP LTD.
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Plaintiff
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and
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SELEX ES LTD.
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Defendant
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ORDER AND REASONS
[1]
This is an appeal by the defendant, Selex Es
Ltd. [Selex], from Prothonotary Mireille Tabib’s [Prothonotary] order dated
September 2, 2016 (2016 FC 1000), which dismissed in part their motion to
strike portions of the statement of claim.
[2]
The plaintiff, Elbit System Electro-Optics Elop
Ltd’s [ELOP], opposes the present motion.
Background
[3]
The plaintiff’s owns Canadian Patent No.
2,527,754 entitled “Fiber Laser Based Jamming System” [‘754 Patent], which
relates to a fiber laser based directional infrared counter measures [DIRCM]
system used as a countermeasure against missiles that tracks base a target
based on the target’s infrared heat signature. One of the plaintiff’s products
is a multi-spectral DIRCM solution that it markets under the trade-mark MUSIC.
The defendant is a direct competitor of the plaintiff and has commercialized a
multi-spectral DIRCM solution which is offered under the trade-mark MIYSIS.
[4]
The present action was commenced on May 13,
2016. It concerns the procurement of upgrades to Canada’s fleet of the Lockheed
CP140 Aurora aircrafts, and in particular, to the installation of DIRCM systems
in those aircrafts. General Dynamics Mission Systems – Canada [GDC] is the
prime contractor which was awarded the upgrade contract from the Government of
Canada. The defendant is a subcontractor of GDC, responsible for installing the
DIRCM system. The plaintiff alleges that the DIRCM systems to be supplied,
delivered, and installed by the defendant would infringe the ‘754 Patent.
[5]
The action claims that the defendant has, or
will imminently infringe the ‘754 Patent by offering, agreeing or contracting
with GDC to supply its systems, but also that the defendant is inducing or
procuring the infringement of the patent by GDC and the Canadian Government. Further,
the plaintiff alleges that GDC has or will consequently induce infringement by
the Government of Canada.
[6]
It is useful to note that neither GDC nor the
Canadian Government are named as defendants, even though allegations are made
that they both have or will directly infringe the ‘754 patent.
Motion to strike
[7]
On August 17, 2016, the Prothonotary heard a
motion made by the defendant under Rule 221 of the Federal Courts Rules,
SOR/98-106 [Rules], to strike parts of the statement of claim without leave to
amend:
i. the entirety of paragraphs 19,
21, 37, 46, 47 and 48;
ii. the
text “and the Government of Canada” from paragraph 1(c)(iii);
iii. the
text “two separate procurement processes. One process that the Canadian
government considered was a purchase directly from a foreign military, and in
particular, the United States Air Force. A second process considered was a” in
paragraph 12;
iv. the
text “the second” in the first sentence and the entire second and third
sentences in paragraph 13;
v. the
text “Request for Proposal to potential subcontractors for various components
of the AIMP Block IV upgrade. Once such” in paragraph 14;
vi. the
entire first sentence in paragraph 17;
vii. the
entire last sentence in paragraph 18;
viii. the
entire last sentence in paragraph 21;
ix. the
text “and the Canadian government” from paragraph 41;
[8]
The defendant withdrew its motion in respect of
paragraphs 41 and 1(c) of the statement of claim and classified the remaining
impugned paragraphs of the statement of claim as follows:
(a)
Allegations of inducement to induce (portions of
paragraph 18 and paragraphs 19 and 37).
(b)
Bald assertions or speculation (portions of
paragraph 21, paragraph 24 and paragraphs 46 to 48).
(c)
Irrelevant pleadings (portions of paragraphs 12,
13, 14 and 17).
[9]
Having successively examined the arguments of
the parties on all three issues, the Prothonotary allowed the motion to strike
in part and ordered that the following passages from the statement of claim be
struck:
(a)
The text “two separate
procurement processes. One process that the Canadian government considered was
a purchase directly from a foreign military, and in particular, the United
States Air Force. A second process considered was a” in paragraph 12;
(b)
The text “the second”
in the first sentence and the entire second and third sentences in paragraph
13; and
(c)
The entire first sentence of paragraph 17.
[10]
Rule 51(1) provides that an order of a
prothonotary may be appealed by a motion to a judge of the Federal Court. The
plaintiff did not appeal, while the defendant served and filed the present
motion in appeal which was heard in general sittings on October 5, 2016 in
Ottawa by the Motions Judge.
Motion in appeal
[11]
As a preliminary observation, there is no
dispute between the parties concerning the applicable rules and principles that
govern pleadings. The purpose of Rule 221 is to enable the Court to
expeditiously dispose of unmeritorious claims which have no chance of
succeeding at trial. This includes claims that disclose no reasonable cause of
action (Rule 221(a)). The test is very stringent. The Court will not strike out
an allegation of a pleading unless it is plain and obvious that it discloses no
reasonable cause of action or it is so clearly futile that it does not have the
slightest chance of success (Hunt v Carey Canada Inc, [1990] 2 S.C.R. 959
at 980; Pfizer Inc v Apotex Inc (1999), 1 CPR (4th) 358
(FCTD) at para 30).
[12]
Although in Apotex Inc v Wellcome Foundation
Ltd, [1996] FCJ No 634, Madam Justice Danielle Tremblay-Lamer was
addressing a motion to strike the defendants’ pleadings (Apotex) made by the
plaintiffs (Wellcome) under former Rule 419, her general comments at paragraph
60 are still relevant today:
[60] In conclusion, I would like to reiterate that striking out
pleadings is a draconian measure. The defendants may not have a strong case on
some of the issues raised by the plaintiffs in their motion. However, the test
in my view is stringent: if there is a scintilla of success in a claim, a Court
should not strike it down. As pointed out by counsel for the defendant Apotex,
this is not a mini-trial or a summary judgment proceeding where I could have
resolved some of the issues. The case law is clear that it has to be beyond
doubt. Despite able argument by counsels for the plaintiff Wellcome, I have not
been convinced that there is sufficient lack of substance to use this draconian
measure, thereby depriving the defendants of their day in Court.
[13]
On the other hand, the Court has a duty to
carefully assess the reasonableness or viability of a claim in light of
applicable legal principles. In particular, I endorse the reasoning of
Prothonotary Roger Lafrenière in Merck & Co Inc v Apotex Inc, 2014
FC 883, [2014] FCJ No 1067 at paragraph 38:
[38] In determining whether a novel claim
has a “reasonable prospect” of success, many factors must be examined. The
clarity of the factual pleadings is important, as well as the existence of case
law discussing the same or similar causes of action is relevant. The courts
must be careful not to inhibit the development of the common law by applying too
strict a test to novel claims. However, as was stated by the Alberta Court of
Appeal in O’Connor Associates Environmental Inc v MEC OP LLC, 2014 ABCA
140: “the courts must resist the temptation to send every case to trial, even
if some legal analysis is needed to determine if a claim has any reasonable
prospect of success…”. The courts accordingly have a duty to carefully assess
the reasonableness or viability of a plea and separate the wheat from the
chaff.
[14]
While the defendant does not allege that the Prothonotary
misunderstood the applicable legal test to strike a pleading, in the present
motion in appeal, the defendant nevertheless submits that the Prothonotary
erred in law in refusing to strike the last sentence of paragraph 18 and
paragraphs 19 and 37 of the statement of claim, as well as paragraphs 46 to 48
of same. Accordingly, the defendant submits that the Motions Judge is entitled
to interfere in the exercise of the Prothonotary’s discretion and review the
whole matter in order to come to its own conclusion on whether: (1) the last
sentence of paragraph 18 and paragraphs 19 and 37 introduce an impermissible
cause of action (inducement to induce infringement); and (2) paragraphs 46 to
48 are defective (speculative allegations relating to sales outside of Canada
of systems that do not infringe the ‘754 Patent).
[15]
The decision to strike a pleading is a
discretionary one. I have considered the respective representations of the
parties in light of the applicable standard of review to be applied in the present
case. However, I disagree with the defendant’s submission that in the case at
bar, the appropriate standard of review is correctness. Rather, the appropriate
standard of review is a palpable and overriding error as defined in Housen v
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen].
[16]
Recently, a panel of 5 judges from the Federal
Court of Appeal reviewed the applicable standard of review governing discretionary
decisions made by prothonotaries (Hospira Healthcare Corporation v Kennedy
Institute of Rheumatology, 2016 FCA 215, [2016] FCJ No 943 [Hospira]).
As stated by the Federal Court of Appeal, the supervisory role of judges over
prothonotaries enunciated in Rule 51 no longer requires that discretionary
orders of prothonotaries be subject to de novo hearings. In accordance
with Housen, absent error on a question of law or an extricable legal
principle, intervention is warranted only in case of palpable and overriding
error.
[17]
The Federal Court of Appeal concluded that the Housen
standard should be applied in reviewing discretionary decisions of judges and
prothonotaries. This standard establishes that with respect to factual
conclusions reached by trial judges, the applicable standard is that of
palpable and overriding error, and with respect to questions of law and
questions of mixed fact and law, where there was an extricable legal principle
at issue, the applicable standard is that of correctness: Hospira at
para 66, citing to paras 19 to 37 of Housen; para 69; para 71, citing to
paras 25 to 29 of Imperial Manufacturing Group Inc v Decor Grates
Incorporated, 2015 FCA 100, [2016] 1 FCR 246 79; para 74, citing to para 12
of Turmel v Canada, 2016 FCA 9, 481 NR 139; and para 79.
[18]
In the present case, since the Prothonotary did
not make any error while describing the applicable test and legal principles governing
the striking out of a pleading under Rule 221, and since the defendant is
challenging the Prothonotary’s application of Rule 221 on the specific facts of
the case, the applicable standard of review for such question of mixed fact and
law should be that of palpable and overriding error. No final decision has been
made by the Prothonotary on the merit of the allegations of infringement and
induced infringement made by the plaintiff in its statement of claim. I doubt
very much that the issues raised today by the defendant in this appeal truly
deal with a pure question of law or an extricable legal principle at issue.
[19]
While the impugned order was made by the
Prothonotary a few weeks before her designation as the Case Management Judge in
this matter, considering her vast experience in these types of file, as
observed by the Federal Court of Appeal in Hospira at paragraph 103: “[…] it is always relevant for motions judges, on Rule 51
appeal, to bear in mind that the case managing prothonotary is very familiar
with the particular circumstances and issues of a case and that, as a result,
intervention should not come lightly. This does not mean, however, that errors,
factual or legal, should go undetected. In the end, “elbow room” is simply a
term signalling that deference, absent a reviewable error, is owed, or
appropriate, to a case managing prothonotary – no more, no less.” Be
that as it may, considering that “discretionary orders
of prothonotaries should only be interfered with when such decisions are
incorrect in law or are based on a palpable and overriding error in regard to
the facts” (Hospira at para 64), I have no ground to interfere
with the order made by the Prothonotary, having found no error of law or an
error of the type that falls within the palpable and overriding error component
of the Housen standard.
Allegations of inducement to induce (portions of paragraph
18 and paragraphs 19 and 37)
[20]
Firstly, the defendant submits that the last
sentence of paragraph 18 and paragraphs 19 and 37 of the statement of claim
should be struck out because inducement to induce an infringement is not a
reasonable cause of action in Canada.
[21]
It is not challenged that in a motion to strike,
“[a]ll allegations of fact, unless patently ridiculous
or incapable of proof, must be accepted as proved” (Edell v Canada
(Revenue Agency), 2010 FCA 26, [2010] FCJ No 110 at para 5, citing to Giacomelli
v Canada (Attorney General) (2005), 78 OR (3d) 388, [2005] OJ No 4298 at
para 7).
[22]
The plaintiff alleges in the first portion of
paragraph 18 of the statement of claim, which is not the object of the
defendant’s motion to strike, the following:
18. As part of the AIMP Block IV contract,
GDC has now, therefore, agreed to sell, supply, deliver and install Selex’s
MIYSIS DIRCM system on the CP140 Aurora aircraft, and to provide ongoing after
installation training, maintenance, service and life-cycle support to the
Canadian government, and in particular, the DND and its employees, in relation
to the MIYSIS DIRCM system. The provision of such after installation training,
maintenance, service and life-cycle support would have been a requirement for
GDC to be selected as the Canadian government’s prime contractor in the AIMP
Block IV upgrade program. […]
[23]
The impugned paragraphs read as follows:
18. […] Also
as part of the contract, GDC will have assumed all liability, and agreed to
indemnify the Canadian government, for any patent infringement relating to AIMP
Block IV upgrade program, including with respect to the MIYSIS DIRCM system.
19. Without
GDC’s influence by way of, among other things, agreeing to supply, deliver,
install and provide after installation training, maintenance, service and
life-cycle support, and to indemnify the Canadian government in the event of
any patent infringement, as described in paragraph 1817, above, the Canadian
government would not have selected GDC as its prime contractor for the AIMP
Block IV upgrade program.
[…]
37. In addition, GDC has also induced and
procured, or will imminently induce or procure, the Canadian government to
infringe the ‘754 Patent, and the Asserted Claims.
[24]
In addition to the impugned paragraphs of the
statement of claim and the first portion of paragraph 18 already cited above,
consideration should also be given to the allegations mentioned in paragraphs
20 to 22 of the statement of claim:
20. GDC has accepted Selex’s offer as set
out above in its response to GDC’s Request for Proposal. GDC and Selex have
either entered into a subcontract relating to the supply of the MIYSIS DIRCM
system for the AIMP Block IV upgrade program, or will imminently enter into
such a subcontract, to formalize their agreement. Under the terms of the
agreement and subcontract between Selex and GDC, Selex is, or imminently will
be, obligated to sell its MIYSIS DIRCM system to GDC, and deliver, supply and
install it on the fleet of CP140 Aurora aircraft on behalf of GDC, and provide
ongoing after installation training, maintenance, service, and life-cycle
support, to the Canadian government, and in particular the DND and its
employees, on behalf of GDC.
21. Selex’s agreement to supply, deliver,
install, and to provide after installation training, maintenance, service and
life-cycle support will have been a requirement for Selex to be selected as
GDC’s subcontractor in the AIMP Block IV upgrade program. It is also customary
and ordinary practice in the defence industry that contracts relating to the
sales and service of goods, machinery and equipment contain clauses under which
the supplier assumes all liability, and indemnifies the purchaser, for any
patent infringement.
22. Without Selex’s influence by way of, among other things,
offering and agreeing to deliver, supply and install, and provide after
installation training, maintenance, service and life-cycle support, and to
indemnify GDC in the event of any patent infringement, as described in
paragraphs 20 and 20 [sic], GDC would not have selected Selex to provide the
MIYSIS DIRCM and the AIMP Block IV upgrade program.
[25]
The defendant recognizes that the impugned
paragraphs must be read in light of the other paragraphs of the statement of
claim. It is important to note that the plaintiff has alleged that the
defendant has directly infringed the ‘754 Patent. Additionally, the plaintiff
has also alleged that the defendant, by itself, has induced the Government of
Canada to infringe the ‘754 Patent. However, the defendant submits that the
impugned paragraphs of the statement of claim pertain to a third separate and
distinct alleged cause of action, namely that the defendant has induced GDC to
in turn induce the Government of Canada to infringe the ‘754 Patent. As such,
it is an allegation of contributory infringement which is not a valid cause of
action in Canada (Apotex Inc v Nycomed Canada Inc, 2011 FC 1441, [2011]
FCJ No 1764 at paras 18 to 28, aff’d 2012 FCA 195, [2012] FCJ No 846).
[26]
In the defendant’s respectful submission, the
Prothonotary misapplied the three-prong test on inducement mentioned by the
Federal Court of Appeal in Weatherford Canada Ltd c Corlac Inc, 2011 FCA
228, [2011] ACF No 1090 at paragraph 162 [Weatherford]:
[162] It is settled law that one who induces or procures another to
infringe a patent is guilty of infringement of the patent. A determination of
inducement requires the application of a three-prong test. First, the act of
infringement must have been completed by the direct infringer. Second, the
completion of the acts of infringement must be influenced by the acts of the
alleged inducer to the point that, without the influence, direct infringement
would not take place. Third, the influence must knowingly be exercised by the
inducer, that is, the inducer knows that this influence will result in the
completion of the act of infringement: Dableh v. Ontario Hydro, [1996] 3
F.C. 751, paras. 42, 43 (C.A.), leave to appeal refused, [1996] S.C.C.A. No.
441; AB Hassle v. Canada (Minister of National Health and Welfare), 2002
FCA 421, 22 C.P.R. (4th) 1, para. 17 (C.A.), leave to appeal refused, [2002]
S.C.C.A. No. 531; MacLennan v. Les Produits Gilbert Inc., 2008 FCA 35,
67 C.P.R. (4th) 161, para. 13. The test is a difficult one to meet.
[27]
In this respect, the Prothonotary writes at
paragraphs 8 and 9 of the impugned decision:
[8] I am not satisfied that the passage of Corlac
identified by the Defendant was intended by the Federal Court of Appeal to
negate indirect infringement as a cause of action, or that the analysis it
presents necessarily leads to the conclusion that no cause of action for
indirect infringement can exist. There were no allegations of indirect
infringement in Corlac. Further, the Defendant’s argument ignores the
first sentence of paragraph 162 of Corlac: “It is settled law that one who induces
or procures another to infringe a patent is guilty of infringement of
the patent”. Since inducement is itself an act
of infringement, the “act of infringement” referred to in the Federal Court of
Appeal’s analysis could be read as including a previously established
infringement by inducement. For the purpose of determining whether a second or
indirect inducer is itself guilty of infringement by inducement, the first
inducer could then be construed as the “direct infringer”. I need not embark on
a complete review of the law of inducement to determine whether the law would
otherwise support the Defendant’s interpretation of the Federal Court of
Appeal’s reason in Corlac. It was the Defendant’s burden to satisfy the
Court that a cause of action in indirect inducement did not have the slightest
chance of success; its argument, based as it is solely on the interpretation of
one paragraph of a 172-paragraph decision, falls far short of the required
standard.
[9] The second prong of the Defendant’s
argument on this issue is that, even assuming that indirect infringement is a recognizable
cause of action, the “act of infringement” allegedly completed by the first
inducer, GDC, includes an agreement by GDC to indemnify Canada. Since the SOC
fails to allege, in turn, that the Defendant’s actions in any way influenced
GDC in giving that indemnification agreement, the three prong test in Corlac
cannot be met, and the action is bound to fail. The Defendant’s argument
requires a very strict reading of the allegations of the SOC, to the point that
the giving of an indemnity by GDC to Canada would become a necessary component
of the alleged inducement. I am not satisfied that, either on a fair reading of
the SOC or at law, the giving of an indemnity is a sine qua non
condition of inducement. Further, the SOC specifically alleges, at paragraph
22, that: “Without [the Defendant’s] influence by way of among other things,
(…) agreeing (…) to indemnify GDC (…), GDC would not have selected [the
Defendant] (…).” Assuming as I must, that this and other allegations of the SOC
are proven, I am not satisfied that there are no grounds on which a court might
find that the Defendant’s acts influenced GDC’s acts to the point that without
them, GDC would not have given the alleged indemnity to Canada.
[Emphasis in original]
[28]
For there be a reasonable cause of action for
infringement by inducement, there must be facts upon which the Court can find
that “but for” the acts of inducement the direct infringement would not take
place. At this stage, the Prothonotary had to assume as proven all relevant
allegations of the statement of claim related to infringement and inducement to
infringe. After reviewing the totality of the plaintiff’s allegations in the
statement of claim, it is not plain and obvious to me that the relationship
between the defendant and GDC and the Government of Canada, is a separate and
distinct cause of action. Consequently, the defendant has not convinced me that
the Prothonotary has made any reviewable error in refusing to strike out the
last sentence of paragraph 18 and paragraphs 19 and 37 of the statement of
claim.
[29]
The Prothonotary was not called to decide the
merit of the allegations of infringement and induced infringement found in the
statement of claim, but only to decide if same should be struck out because it
is plain and obvious that they do not disclose a reasonable cause of action.
According to Rule 221, the statement of claim must be read as generously as
possible and the Court should generally refuse to strike out “surplus
statements” that are not prejudicial (Sivak v Canada, 2012 FC 272,
[2012] FCJ No 291 at paras 16 and 27 [Sivak]). Doubt is to be resolved
in favour of permitting the pleading so that relevant evidence in support of
the pleading may be brought before the trial judge (Sivak at para 27
citing Apotex Inc v Glaxo Group Ltd, 2001 FCT 1351, [2001] FCJ No 1863).
[30]
While the parties have not cited any cases that
have considered acts of inducement consisting of a subcontractor providing and
indemnity to a prime contractor who, in turn, provides an indemnity to the
ultimate customer, as mentioned by the Prothonotary, “[i]t
was the Defendant’s burden to satisfy the Court that a cause of action in
indirect inducement did not have the slightest chance of success”. The
Prothonotary, in my respectful opinion, did not err in law or make any palpable
and overriding error in concluding that she was “not
satisfied that there are no grounds on which a court might find that the Defendant’s
acts influenced GDC’s acts to the point that without them, GDC would not have
given the alleged indemnity to Canada.”
Allegations related to sales outside of Canada (paragraphs
46 to 48)
[31]
Secondly, the defendant submits that paragraphs
46 to 48 of the statement of claim should be struck out because speculative
allegations relating to sales outside of Canada of systems that do not infringe
the ‘754 Patent do not disclose a reasonable cause of action.
[32]
The impugned paragraphs read as follows:
46. ELOP’s
damage, and Selex’s profit, as a result of the infringement, also extend beyond
the specifically pleaded infringing activity. Selex has, for a number of years,
unsuccessfully attempted to sell its MIYSIS DIRCM system into the market place
in Canada and around the world. It has been unsuccessful in obtaining any
foothold in the market, or making any sale at all, at least in part because it
has not been able to demonstrate the operational capabilities of the system.
47. The
implementation of Selex’s infringing MIYSIS DIRCM system in the CP140 Aurora
aircraft will provide Selex with an infringing platform to demonstrate the
system’s operational capabilities, and leverage Selex’s ability to expand sales
of the MIYSIS DIRCM system to other jurisdictions, including those where ELOP
does not have patent protection. Selex’s use of this infringing platform to
demonstrate its system’s capabilities will materially facilitate and aid Selex
to penetrate and make sales in these other markets.
48. Selex’s infringing activity will thus lead to permanent and
irreparable loss of market share.
[33]
The defendant submits that products made, used
and sold in other jurisdictions cannot constitute an infringement of the ‘754
Patent and that the damages claimed by the plaintiff in respect of such future
sales activities are speculative at best and should be struck by the Court.
Moreover, allowing the impugned paragraphs remain in the statement of claim
would be prejudicial to the defendant, since the plaintiff will inevitably
attempt to pursue discovery of facts and documents relating to all of the
defendant’s sales activities in respect of MIYSIS in other jurisdictions.
[34]
In this respect, the Prothonotary writes at
paragraph 12 of the impugned decision:
Finally, the Defendant submits that paragraphs 46 to 48 of the SOC
improperly speculate as to what it might do in the future. The Defendant cites Faulding
(Canada) Inc. v Pharmacia S.p.A., 1998 82 CPR 3rd 435 in support
of its argument that they should be struck. I agree with the submissions of the
Plaintiff to the effect that the facts alleged in those paragraphs do not
purport to set up a speculative cause of action, but to support a claim for a
certain species of damages flowing from the alleged acts of infringement. The
pleadings therefore do not impermissibly plead a speculative cause of action.
If there is an element of foretelling as to the damages that might in the
future flow from the infringement, it is not, in the circumstances, purely
speculative or improper, as the future losses are reasonably arguable as
foreseeable consequences of a specifically pleaded set of past and current
factors.
[35]
The defendant has not convinced me that the
Prothonotary has made any reviewable error in refusing to strike out paragraphs
46 to 48 of the statement of claim.
[36]
Under subsection 55(1) of the Patent Act,
RSC 1985, c P-4, a person who infringes a patent is liable to the patentee and
for any damages sustained by the patentee by reason of the infringement.
Moreover, damages for patent infringement may include damages incurred outside
of Canada, if the damages are caused by an infringement in Canada (Allied
Signal Inc v DuPont Canada Inc (1998), 78 CPR (3d) 129 (FCTD) at paras
18-19, 25-29, 31 and 34, aff’d 86 CPR (3d) 324 (FCA) [Allied Signal]).
According to the case law, a future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation (Apotex Inc v Merck Canada Inc, 2012 FC 1235, [2012]
FCJ No 1323 at para 37). Therefore, the Prothonotary, in my respectful opinion,
did not err in law or make any palpable and overriding error in concluding that
“the facts alleged in [paragraphs 46 to 48] do not
purport to set up a speculative cause of action, but [are alleged] to support a
claim for a certain species of damages flowing from the alleged acts of
infringement.”
Conclusion
[37]
The role of the Motions Judge in deciding the
merit of an appeal of a discretionary order of a prothonotary is limited to
verify whether a reviewable error has been made by the prothonotary (Hospira
at paras 64, 69, 78 and 79). In the case at bar, it was not plain and obvious
for the Prothonotary that the impugned paragraphs of the statement of claim
should be struck out under Rule 221 because they disclosed no reasonable cause
of action or were otherwise deficient. In the absence of an error on a question
of law or an extricable legal principle, intervention is warranted only in
cases of palpable and overriding error by the Prothonotary. This is not the
case here and I have no reason to intervene today in the exercise of the
Prothonotary’s discretion to refuse to strike a proceeding.
[38]
The present motion in appeal is dismissed with
costs.
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