Date: 19990112
Docket: T-1880-98
MONTRÉAL, QUEBEC, JANUARY 12, 1999
| Before: RICHARD MORNEAU, PROTHONOTARY |
Between:
LOMINGER LIMITED INC.
and
MICHAEL M. LOMBARDO
and
ROBERT W. EICHINGER
Plaintiffs,
AND
RAYMOND, CHABOT, MARTIN, PARÉ
Defendant.
ORDER
This motion to strike paragraphs 17 and 20 of the plaintiffs" statement of claim is dismissed with costs against the defendant.
The Court notes the defendant"s discontinuance of its motion to strike based on the insufficiency of the substantive facts relied on by the plaintiffs, the whole without costs.
The Court further notes the plaintiffs" discontinuance of their motion for judgment by default, the whole without costs.
Further, the plaintiffs will have until 4 p.m. on Tuesday, January 12, 1999 to serve and file further particulars or to amend their current statement of claim to incorporate all the particulars which they may have supplied or intend to supply to the defendant.
The defendant will have until Friday, January 15, 1999 to serve and file a new motion to dismiss or for further particulars. That motion will have to be ready for submission on Monday, January 25, 1999.
In the event that it does not file this motion, the defendant will have to serve and file its defence by January 20, 1999 at the latest. If it files the motion the defendant will have to serve and file its defence within two days of the judgment to be rendered on that motion.
| Richard Morneau Prothonotary |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990112
Docket: T-1880-98
Between:
LOMINGER LIMITED INC.
and
MICHAEL M. LOMBARDO
and
ROBERT W. EICHINGER
Plaintiffs,
AND
RAYMOND, CHABOT, MARTIN, PARÉ
Defendant.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
| [1] The Court originally had two motions before it. |
[2] One was by the defendant asking the Court to strike out several allegations in the plaintiffs" statement of claim on the ground, first, that several allegations were insufficient as to the substantive facts relied on, and second, on the ground that allegations 17 and 20 of the plaintiffs' statement of claim were immaterial and disclosed no cause of action within the meaning of Rule 221(1)(a ) of the Federal Court Rules (1998).
[3] The other motion was by the plaintiffs seeking judgment by default against the defendant.
[4] It was decided in court to proceed only on the motion to strike paragraphs 17 and 20 of the statement of claim and submit the other aspect of the motions to a schedule decided on by mutual agreement between counsel for the parties. The order accompanying these reasons refers to that schedule and the fate of part of the motion under review.
[5] Paragraphs 17 and 20 of the statement of claim read as follows:
| 17. Raymond Chabot has infringed Lominger's rights by leaving the following Lominger Materials with third parties so that unauthorized reproduction of the Lominger Materials could be made: one or more versions of the CAREER ARCHITECT - Portfolio Sort Cards. |
(my emphasis)
| 20. Following notification by Lominger to Raymond Chabot that the Lominger Materials are protected by copyright, Raymond Chabot's acts as described herein constitute willful infringement. |
[6] As to paragraph 17, I cannot conclude that it is quite apparent that the words "so that unauthorized reproduction . . . could be made" disclose no cause of action under s. 27(1) of the Copyright Act, R.S.C. 1985, c. C-34 ("the Act"). In the circumstances it seems that the foregoing language can be interpreted as meaning that Lominger is charging the defendant with authorizing or inciting third parties to reproduce Lominger works, an authorization which could only legally come from the copyright holder, namely Lominger.
[7] Accordingly, paragraph 17 does not require to be struck out. It is for the parties, within the schedule set out in the Order attached to these Reasons, to determine whether in its present form that paragraph contains the necessary particulars.
[8] So far as paragraph 20 of the statement of claim is concerned, it appears from the language of s. 39(1) of the Act that an allegation regarding copyright in a work and a deliberate infringement of that right is a material allegation in the circumstances. Consequently, paragraph 20 also does not require to be struck out.
[9] This motion to strike paragraphs 17 and 20 of the plaintiffs" statement of claim will therefore be dismissed, with costs against the defendant.
| Richard Morneau Prothonotary |
MONTRÉAL, QUEBEC
January 12, 1999
Certified true translation
Bernard Olivier, LL. B.
| FEDERAL COURT OF CANADA Court No. T-1880-98 BETWEEN
Plaintiffs, - and -
Defendant. REASONS FOR ORDER |
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No: T-1880-98
STYLE OF CAUSE: LOMINGER LIMITED INC.
and
MICHAEL M. LOMBARDO
and
ROBERT W. EICHINGER
Plaintiffs,
AND
RAYMOND, CHABOT, MARTIN, PARÉ
Defendant.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 11, 1999
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: January 12, 1999
APPEARANCES:
| Mireille A. Tabib for the plaintiff |
| Jacques A. Léger for the defendant |
Danielle Harnois
SOLICITORS OF RECORD:
| Stikeman, Elliott for the plaintiffs |
Montréal, Quebec
| Léger Robic Richard for the defendant |
Montréal, Quebec