Date: 20081203
Dockets: A-94-08
A-95-08
Citation: 2008 FCA 383
CORAM: DESJARDINS J.A.
NADON J.A.
BLAIS J.A.
Docket:
A-94-08
BETWEEN:
ROLAND HARRISON and
CAROLINA MAT CO. INC.
Appellants
and
SWAMP MATS INC.
Respondent
Docket:
A-95-08
BETWEEN:
ROLAND HARRISON and
CAROLINA MAT CO. INC.
Appellants
and
STERLING LUMBER COMPANY
Respondent
Heard at Toronto, Ontario, on December
3, 2008.
Judgment
delivered from the Bench at Toronto, Ontario, on December
3, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: NADON
J.A.
Date:
20081203
Docket:
A-94-08
Citation:
2008 FCA 383
CORAM: DESJARDINS
J.A.
NADON
J.A.
BLAIS
J.A.
Docket:
A-94-08
BETWEEN:
ROLAND HARRISON and
CAROLINA MAT CO. INC.
Appellants
and
SWAMP MATS INC.
Respondent
Docket:
A-95-08
BETWEEN:
ROLAND HARRISON and
CAROLINA MAT CO. INC.
Appellants
and
STERLING LUMBER COMPANY
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on December 03,
2008)
NADON J.A.
[1]
These
are appeals from two decisions of Madam Justice Simpson of the Federal Court,
dated February 20, 2008 and April 11, 2008.
[2]
By
her decision dated February 20, 2008, the Judge set aside a decision of
Prothonotary Aalto dated June 26, 2004, and refused to allow the appellants to
make a number of amendments to their Statement of Claim, namely, proposed
amended paragraph 11.
[3]
By
her decision dated April 11, 2008, the Judge reconsidered her decision of
February 20, 2008, and concluded that she had “overlooked the question of
whether to strike paragraphs 8 and 12 of the amended claims when I struck
paragraph 11 therefrom”.
[4]
We
are satisfied that Simpson J. made no error in holding that she could review
the Prothonotary’s decision on a de novo basis. In our view, because of
the nature of the amendments sought to be made by the appellants, i.e.
asserting the infringement of additional claims of the ‘302 patent, it cannot
be said that the amendments were not vital to the final issue of the case (see:
Merck & Co. v. Apotex Inc., 2003 FCA 488, at paragraphs 21 to 28).
[5]
We
are also satisfied that in striking sub-paragraph 8(1), 8(2), 8(4), 8(5) and
paragraph 11 of the proposed amended Statement of Claim and in determining that
paragraph 12 thereof was to be amended so as to eliminate all references to
claims other than claim 14 of the patent, Simpson J. did not make her decision
on a wrong basis. It is also our view that she was not plainly wrong in making her
decision.
[6]
Finally,
we have not been persuaded that the Judge made any error in reconsidering her
Order of February 20, 2008, so as to dispose of the issue concerning proposed
amended paragraphs 8 and 12 of the Statement of Claim.
[7]
The
appeals will therefore be dismissed with costs.
“M.
Nadon”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-94-08
(APPEAL FROM
A JUDGMENT OR ORDER OF THE HONOURABLE MADAM JUSTICE SIMPSON DATED FEBRUARY 20,
2008, NO. T-2099-05)
STYLE OF CAUSE: ROLAND HARRISON and CAROLINA MAT CO. v. SWAMP MATS INC.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 3, 2008
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS, NADON, BLAIS JJ.A.
DELIVERED
FROM THE BENCH BY: NADON
J.A.
DATED: DECEMBER 3, 2008
APPEARANCES:
|
Mala Joshi
|
FOR THE
APPELLANT
|
|
Jeilah Chan
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Ridout & Maybee
LLP
Toronto, Ontario
|
FOR THE
APPELLANT
|
|
Bennett Jones
LLP
Toronto, Ontario
|
FOR THE RESPONDENT
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-95-08
STYLE OF CAUSE: ROLAND
HARRISON and CAROLINA MAT CO. INC. v. STERLING LUMBER COMPANY
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER
3, 2008
REASONS FOR JUDGMENT OF THE
COURT BY: DESJARDINS,
NADON, BLAIS JJ.A.
DELIVERED FROM THE BENCH BY: NADON
J.A.
APPEARANCES:
|
Mala
Joshi
|
FOR
THE APPELLANTS
|
|
Jeilah
Chan
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Ridout
& Maybee LLP
Toronto,
Ontario
|
FOR THE APPELLANTS
|
|
Bennett
Jones LLP
Toronto, Ontario
|
FOR THE RESPONDENT
|
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