Date: 19990114
Docket: T-1604-95
BETWEEN:
ILLVA SARONNO S.p.A.
Plaintiff
- and -
PRIVILEGIATA FABBRICA MARASCHINO "EXCELSIOR"
GIROLAMO LUXARDO S.p.A.,
GIROLAMO LUXARDO MARASCHINO CANADA LTD.,
SAVERIO SCHIRALLI AGENCIES LIMITED and
VANRICK CORPORATION LIMITED
Defendants
REASONS FOR ORDER
(Edited version of reasons delivered from the Bench
on Monday, January 11, 1999 at Toronto, Ontario)
REED J.:
[1] Applying the decision in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), which establishes the test to be applied on an appeal from a prothonotary's decision, and the principles that apply to proper pleadings leads to the conclusion that this appeal from the decision of the Associate Senior Prothonotary must be dismissed. Also, I agree with Mr. Edmonds' argument that delay is a relevant consideration in this care. It would appear that many of the facts, if not all of those sought to be added by the proposed amendment to the Statement of Defence were known by the defendants at the time the Statement Defence was filed. If they are relevant now, they would have been relevant then and could have been pleaded at that time, thereby allowing for an orderly pre-trial procedure.
[2] More importantly, however, the proposed amendments are vague, imprecise and lack particularity. They contain what I think is clearly an irrelevant defence - the defence of mitigation. They contain an irrelevant breach of contract pleading.
[3] I do not think the proposed amendmnets would facilitate the resolution of the dispute. I agree that they would simply obscure the real issue of this trademark infringement action and divert attention from its resolution.
[4] I have struggled with the proposed pleadings to see if I could find within them some sort of framework that, with revision, could become proper pleadings. I have been unable to find any, other than those mentioned in the course of counsel's argument. They contain irrelevant, superfluous and background material. Pleadings are not the place for background history. With the exception of the words "excepting Alberta" that have been added to paragraph 18, the appeal is dismissed.
"B. Reed"
Judge
TORONTO, ONTARIO
January 13, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1604-95
| STYLE OF CAUSE: ILLVA SARONNO S.p.A. |
and -
| PRIVILEGIATA FABBRICA MARASCHINO "EXCELSIOR" GIROLAMO LUXARDO S.p.A., GIROLAMO LUXARDO MARASCHINO CANADA LTD., SAVERIO SCHIRALLI AGENCIES LIMITED and VANRICK CORPORATION LIMITED |
DATE OF HEARING: MONDAY, JANUARY 11, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: THURSDAY, JANUARY 14, 1999
APPEARANCES: Mr. Brian D. Edmonds, Esq.
For the Plaintiff
Mr. Newton Wong, Esq.
For the Defendants
SOLICITORS OF RECORD: McCarthy Tétrault
Barristers & Solicitors
| 4700 TD Bank Tower |
| P.O. Box 48, Stn. Toronto Dom. |
| Toronto, Ontario |
| M5K 1E6 |
For the Plaintiff
| Wong & Associates |
| Box 18, Cadillac Fairview Tower |
| 3018-20 Queen Street West |
| M5H 3R3 |
| For the Defendants |
FEDERAL COURT OF CANADA
Date: 19990114
Docket: T-1604-95
Between:
ILLVA SARONNO S.p.A.
Plaintiff
- and -
| PRIVILEGIATA FABBRICA MARASCHINO "EXCELSIOR" |
GIROLAMO LUXARDO S.p.A.,
GIROLAMO LUXARDO
MARASCHINO CANADA LTD.,
SAVERIO SCHIRALLI AGENCIES
LIMITED and
VANRICK CORPORATION LIMITED
Defendants
REASONS FOR ORDER