Institut National des Appellations d'Origine v. Cellar Craft International (Canada) Ltd., docket T-1771-98

Date: 19990223

Docket: T-1771-98

BETWEEN:

     INSTITUT NATIONAL DES

     APPELLATIONS D'ORIGINE,

     Plaintiff,

     - and -

     CELLAR CRAFT INTERNATIONAL

     (CANADA) LTD.,

     Defendant.

     REASONS FOR ORDER AND ORDER

MR. JOHN A. HARGRAVE,

PROTHONOTARY

[1]      The Plaintiff issued a Statement of Claim against Cellar Craft International (Canada) Ltd. ("Cellar Craft") 10 September 1998. It turned out that Cellar Craft had sold its business to Pride Beverages Ltd. some 6 weeks earlier. No defence having been filed, the Plaintiff amended its Statement of Claim, unilaterally, under Rule 200, to add Pride Beverages Ltd. as a Defendant, on 12 November 1998.

[2]      The Defendant, Cellar Craft, now moves to strike out the Amended Statement of Claim on the grounds that Pride Beverages Ltd. was added improperly under Rule 200 which provides that "... a party may, without leave, amend any of its pleadings at any time before another party has pleaded thereto...". Counsel for Cellar Craft submits that Rule 200 may not be used to add a party to the style of cause.

[3]      Rule 200, governing amendment of a pleading before it is answered, is similar to former Rule 421. Clearly, a correction might be made to a style of cause under both of these rules so long as it does not substitute a new party: see for example The "South Angela", [1989] 1 F.C. 259. However, the style of cause may not be altered so as to add a new party under either the old rule or new Rule 200: see Larsen v. Canada (1995), 60 C.P.R. (3d) 98 in which I referred to Noss Aktiebolag v. Aktiebolaget Cellco (1982), 65 C.P.R. (2d) 115 (F.C.) which sets this out as a bare proposition. Perhaps I should have elaborated, in Larsen, however the circumstances there did not require a gloss on the likely knowledge that resulted in the Noss Aktiebolag decision.

[4]      The reason for this interpretation of the extent of amendment allowed without leave has long been recognized under the procedures that govern amendment and addition of parties in England. There, Order 15 Rule 6 deals with the addition of parties and Order 20 Rule 1 with the amendment of pleadings and other documents. The White Book points out, referring first to Order 15 Rule 6:

The White Book also sets out a mandatory proposition:

[5]      This may be further explained by saying that a plaintiff, in commencing a proceeding, is entitled to choose the persons against whom to proceed and to leave out other persons, however, once an action has been commenced it is for the Court to decide what parties shall or shall not be joined according to the requirements of justice.

[6]      To put this into a present context, old Rule 421 and new Rule 200 deal with the amendment of a pleading, that is an amendment of the words defining the claim and to minor corrections to a style of cause which neither add a party nor create confusion. In contrast, old Rule 1716(2) and new Rule 104(1) deal with the adding of a party where such is necessary to do justice by a full and effectual adjudication.

[7]      There is nothing in the new Rules which indicates that the style of cause, that is the title of a proceeding, may be unilaterally amended by a plaintiff before the cause of action has been answered. Thus I allowed the motion of the Defendant, Cellar Craft, to strike out the Amended Statement of Claim. That being the case, there is no service on Pride Beverages Ltd. The Statement of Claim is therefore as originally filed 10 September 1998.

ORDER

1.      The Amended Statement of Claim of 12 November 1998 is struck out;

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

Vancouver, British Columbia

February 23, 1999

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

HEARING DATED:          February 22, 1999

COURT NO.:              T-1771-98

STYLE OF CAUSE:          Institut National Des Appellations D'Origine

                     v.

                     Cellar Craft International (Canada) Ltd.

PLACE OF HEARING:          Vancouver, BC

REASONS FOR ORDER AND ORDER OF

MR. JOHN A. HARGRAVE, PROTHONOTARY

dated February 23, 1998

APPEARANCES:

     Mr. Michael Manson      for Plaintiff

     Mr. Bruce Green          for Defendant

SOLICITORS OF RECORD:

     Smart & Biggar

     Vancouver, BC          for Plaintiff

     Oyen Wiggs Green Mutula

     Vancouver, BC          for Defendant