Date: 20030312
Docket: T-916-01
Montréal, Quebec, March 12, 2003
Present: Richard Morneau, Prothonotary
BETWEEN:
CIVES CORPORATION
Plaintiff
and
EVEREST EQUIPMENT INC.
Defendant
AND BETWEEN
EVEREST EQUIPMENT INC.
Plaintiff by counterclaim
and
CIVES CORPORATION
Defendant by counterclaim
ORDER
Leave is hereby granted to the defendant to serve and file an amended defence and counterclaim within ten days from the date of this order, in accordance with the draft thereof appended to its motion. Costs in the cause.
Richard Morneau
Prothonotary
Certified true translation
Mary Jo Egan, LLB
Date: 20030312
Docket: T-916-01
Neutral Citation: 2003 FCT 295
BETWEEN:
CIVES CORPORATION
Plaintiff
and
EVEREST EQUIPMENT INC.
Defendant
AND BETWEEN
EVEREST EQUIPMENT INC.
Plaintiff by counterclaim
and
CIVES CORPORATION
Defendant by counterclaim
[1] This is a motion by the defendant (plaintiff by counterclaim) (hereinafter the defendant) under Rule75 of the Federal Court Rules, 1998, (the Rules) for leave to amend its defence and counterclaim (the defence). This motion arises in the context of an action by the plaintiff alleging that the defendant has infringed its trade-mark and committed the delict of passing off.
[2] With respect to the principles that govern the amendments of pleadings, counsel for the parties in this case well know that the following passage from Canderel Ltd. v. Canada,
[1994] 1 F.C. 3 (C.A.), at page 10, clearly reflects the liberal approach to be taken by the Court in such a matter:
. . . while it is impossible to enumerate all the factors that a judge must take into consideration in determining whether it is just, in a given case, to authorize an amendment, the general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice.
Analysis
[3] The litigation between the parties in this case is still at a preliminary stage. In fact, the examinations on discovery have not yet been held. The defendant wishes to amend its defence following the receipt of additional information and the completion of an investigation.
[4] The plaintiff objects to some of the amendments proposed by the defendant on two grounds.
[5] First, the plaintiff submits that, through some of the amendments, the defendant is introducing into the record allegations of a possible infringement by the plaintiff of certain technology, plans or specifications. Second, according to the plaintiff, some of the amendments introduce irrelevant references to an American case. The plaintiff contends that none of these allegations could constitute a valid defence in the context of this action.
[6] At this stage, I am not satisfied that it is clear and obvious that the plaintiff's views on the amendments in dispute are the scope and the avenue that the defendant seeks to use by these very amendments. I am satisfied that the defendant is seeking to introduce these allegations for the fundamental purpose of clarifying and further developing its original defence against the plaintiff's action, namely, that the plaintiff has over the years abandoned a valid use of the marks in dispute, or that the marks have lost their distinctiveness.
[7] The proposed amendments cover the chain of title of the marks in dispute and attempt to establish ultimately that certain events after January 1, 1995, support a finding of gradual abandonment by the plaintiff and a loss of distinctiveness of the marks.
[8] In addition, the fact that the plaintiff does not object to the defendant introducing paragraphs 18, 19 and 20 as well as 41, 43 and 44 means that it is logical, even useful on the merits, that all of paragraphs 19 to 45 be admitted. These paragraphs form a whole.
[9] Although some allegations may ultimately prove to be of rather marginal importance, the plaintiff has not provided any affidavit evidence to establish that the proposed amendments would cause it irreparable harm in terms of costs.
[10] For these reasons, the defendant's motion is granted, with costs in the cause.
Richard Morneau
Prothonotary
Montréal, Quebec
March12, 2003
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030312
Docket: T-916-01
Between:
CIVES CORPORATION
Plaintiff
and
EVEREST EQUIPMENT INC.
Defendant
And between
EVEREST EQUIPMENT INC.
Plaintiff by counterclaim
and
CIVES CORPORATION
Defendant by counterclaim
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-916-01
STYLE OF CAUSE:
CIVES CORPORATION
Plaintiff
and
EVEREST EQUIPMENT INC.
Defendant
And between:
EVEREST EQUIPMENT INC.
Plaintiff by counterclaim
and
CIVES CORPORATION
Defendant by counterclaim
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 24, 2003
RICHARD MORNEAU, PROTHONOTARY
DATED: March 12, 2003
APPEARANCES:
Daniel A. Artola FOR THE PLAINTIFF
Ronald Fecteau FOR THE DEFENDANT
SOLICITORS OF RECORD:
McCarthy Tétrault FOR THE PLAINTIFF
Montréal, Quebec
Monty, Coulombe FOR THE DEFENDANT
Sherbrooke, Quebec