Date: 19991112
Docket: T-917-97
Ottawa, Ontario, the 12th day of November, 1999
Present: The Honourable Madame Justice Sharlow
BETWEEN :
1029894 ONTARIO INC.
Plaintiff
- and -
DOLOMITE SVENSKA AKTIEBOLAG and
DOLOMITE HOME CARE PRODUCTS INC.
Defendants
REASONS FOR ORDER and ORDER
[1] The Plaitiff manufactures and sells walkers with a certain kind of handbrake. The Defendants are, respectively, the owner and licensee of a registered Canadian industrial design for a braking handle, and a Canadian patent relating to a braking handle with a locking feature. In paragraph 7 of the Statement of Claim filed on May 8, 1997, the Plaintiff alleges that:
| 7. The Defendants have made false and/or misleading statements tending to discredit the business, wares and services of the Plaintiff and its brake handles. In particular the Defendants have alleged to the Plaintiff's customers, distributors and agents that the Plaintiff's brake handles infringe their Design and Patent rights. These representations were made by the Defendants for the purpose of obtaining a competitive advantage in the marketplace and, as a result, the Defendants have profited by these misrepresentations whereas the Plaintiff has suffered damages. |
[2] Paragraph 7 of the Statement of Claim is intended to state a cause of action based on paragraph 7(a) of the Trade Mark Act.
[3] On May 29, 1997, the Defendants made a formal demand for particulars with respect to paragraph 7 of the Statement of Claim. They wanted details of the alleged false and/or misleading statements, including what statements were made and to whom, by whom, when and where they were made.
[4] On July 6, 1999, the Plaintiff replied to that demand as follows:
| The identity of what statements were made is sufficiently described in paragraph 7. Particulars of to whom the statements were made, by whom the statements were made, when the statements were made and where the statements were made are known to the defendants. As examples, offending statements were made by representatives of the defendants to exhibitors at trade shows including Medtrade 97 held in October 1997 in New Orleans, Louisiana; the Canadian Seating and Mobility Conference held in September, 1998 in Toronto, Ontario; and Medtrade 98 held in November 1998 in Atlanta, Georgia. |
[5] On August 19, 1999, the Defendants filed a notice of motion seeking an order striking out paragraph 7 of the Statement of Claim for failure to provide particulars, or alternatively for an order requiring further particulars, including who made the statements, to whom they were made, where they were made, when they were made, and what was said. They argued that they are unable to respond to the allegation in paragraph 7 without such particulars. No affidavit was filed with the notice of motion.
[6] The motion was heard by the Prothonotary. He denied the motion for reasons that are brief enough to be quoted in full:
| The Plaintiff provided particulars which are more than sufficient to allow the Defendants to understand the claim and plead their defence (see paragraph 17 of the Plaintiff's written submissions). Further particulars, in the absence of any evidence to the contrary, are likely in the knowledge of the Defendants. Moreover, no affidavit evidence was placed before me to establish that the requested particulars were necessary for pleading. |
[7] Paragraph 17 of the Plaintiff's written submissions, which the Prothonotary adopted by reference, reads as follows:
| The particulars already provided answer (a) that the statements were made by representatives of the Defendants, (b) that the statements were made to the Plaintiff's customers, distributors and agents including, for example, exhibitors at trade shows including Medtrade 97, the Canadian Seating and Mobility Conference and Medtrade 98, (c) that the statements were made, for example, at trade shows in New Orleans, Lousiana; Toronto, Ontario; and Atlanta, Georgia, (d) that the statements were made, for example, in October 1997, September 1998 and November 1998, and (e) that what was said was that the Plaintiff's brake handless infringe the Defendants [sic] Design and Patent Rights. |
[8] The standard of review of the order of a Prothonotary is stated as follows in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A.) at 454:
| [...] such orders ought to be disturbed on appeal only where it has been made to appear that |
| (a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or |
| (b) in making them, the prothonotary improperly exercised his discretion on a question vital to the final issue of the case. |
| In each of these classes of cases, the Motions Judge will not be bound by the opinion of the prothonotary; but will hear the matter de novo and exercise his or her own discretion. |
[9] There are two motions in this case. As they are alternatives, they must be considered separately.
[10] An order for particulars or refusing to make an order for particulars is not a matter vital to any final issue. Therefore, the Prothonotary's refusal to order particulars must stand unless it was based on an error of law or fact.
[11] The reasons given by the Prothonotary for his order indicate that he was satisfied that paragraph 7 of the Statement of Claim and the particulars already provided, when combined with the facts presumed to be within the Defendants' knowledge, are sufficient to enable the Defendants to defend itself against the allegations in paragraph 7. In reaching this conclusion the Prothonotary clearly was influenced by the failure of the Defendants to provide any evidence to the contrary. I have been unable to detect any error of law or fact in the decision of the Prothonotary to refuse to order particulars. That decision must stand.
[12] The motion to strike paragraph 7 of the Statement of Claim would, if allowed, dispose of that cause of action, and therefore I am required to consider that motion anew.
[13] I have concluded that paragraph 7 should not be struck. The allegations in paragraph 7, when read together with the Plaintiff's response to the demand for particulars, accords with the standard adopted in Control Data Canada, Ltd. v. Senstar Corp., (1988), 25 F.T..R. 81 (T.D.) for a claim based on paragraph 7(a) of the Trade Mark Act.
[14] For these reasons, the Defendants' appeal is dismissed with costs.
ORDER
The Defendants" appeal is dismissed with costs.
"Karen R. Sharlow"
Judge