Date: 20010423
Docket: T-1444-00
Neutral citation: 2001 FCT 376
BETWEEN:
RAGDOLL PRODUCTIONS (UK)LIMITED and
THE ITSY BITSY ENTERTAINMENT COMPANY and
THE ITSY BITSY ENTERTAINMENT COMPANY (CANADA), INC.
Plaintiffs
-and-
WONDERLAND COSTUMES LTD. and
MARY MARTINO
Defendants
[1] The motion before me seeks an Order extending the time for filing the defence and counterclaim which was served within 30 days of service of the statement of claim but was not filed. The Plaintiff objects to the filing alleging that the motion materials fail to satisfy the test for obtaining an extension set out in Canada (AG) v. Hennely (1999), 244 N.R. 399 (Fed. C.A.) as it fails to disclose a defence on the merits. The Plaintiffs state "in any event of the foregoing, the Defendant [sic] take no position with respect to the Defendants, request to extend time to file Defendants' statement of defence but do object to the request to file the counterclaim." The Plaintiffs have addressed the matter of the counterclaim in a cross-motion.
[2] I take the Plaintiffs' position to be that the defence is deficient but they do not really care. They certainly have not bothered to develop their argument. The Defendants have not replied nor have they responded to the Plaintiffs cross-motion.
[3] It is my view that leave should not be given to file a pleading which may be struck out.
[4] The defence of Mary Martineau is found in paragraph 11 of the proposed defence. It implies that she did the infringing act but only did so as a director and officer. If she did the acts, she would be responsible. No reasonable defence is alleged.
[5] If Mary Martineau infringed as an officer of the corporate defendant, the corporate defendant could be vicariously liable. The corporate defendant appears to admit it has stored and rented a Teletubbies costume. A material included by the Plaintiffs in their generic term "intellectual property". The defence of the corporate defendant is certainly incomplete. I do not intend to allow the late filing of the statement of defence tendered but in view of the attitude of the Plaintiffs, would allow a further application.
[6] With regard to the counterclaim, by it the Defendant, Mary Martineau seeks:
(a) Damages in the amount of $100,000.00 in Tort for the intentional infliction of mental suffering, and
(b) Damages in the amount of $100,000.00 for continuing allegations of trademark infringement and intellectual property infringement.
[7] This Court has no jurisdiction in matters of intentional infliction of mental suffering. The counterclaim could therefore be struck at least in part. I will not make an order extending time to let it be filed. With regard to damages for continuing allegations of trademark and intellectual property infringement, at best, particulars would be necessary to sustain such a plea within the jurisdiction.
ORDER
[8] The motion for an Order extending the time for filing a statement of defence and counterclaim is dismissed with leave to re-apply within 30 days of the date of this Order to file a defence or defence and counterclaim within the jurisdiction of the Court.
[9] The cross-motion being moot is dismissed.
[10] The costs of the motion for an Order extending, fixed at $200.00 are awarded to the Plaintiff in the cause.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
April 23, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1444-00
STYLE OF CAUSE: RAGDOLL PRODUCTIONS (UK)LIMITED and
THE ITSY BITSY ENTERTAINMENT COMPANY and THE ITSY BITSY ENTERTAINMENT COMPANY (CANADA), INC.
Plaintiffs
-and-
WONDERLAND COSTUMES LTD. and
MARY MARTINO
Defendants
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: MONDAY, APRIL 23, 2001
WRITTEN SUBMISSIONS BY: Mr. Lorne Lipkus, and
Ms. Georgina Starkman Danzig
For the Plaintiffs
Mr. Kenneth Alexander
For the Defendants
SOLICITORS OF RECORD: Kestenberg Siegal Lipkus
Barristers & Solicitors
65 Granby Street
Toronto, Ontario
M5B 1H8
For the Plaintiffs
Ball & Alexander
Barristers & Solicitors
82 Scollard Street
Toronto, Ontario
M5R 1G2
For the Defendants
FEDERAL COURT OF CANADA
Date: 20010423
Docket: T-1444-00
Between:
RAGDOLL PRODUCTIONS (UK)LIMITED and THE ITSY BITSY ENTERTAINMENT COMPANY and THE ITSY BITSY ENTERTAINMENT COMPANY (CANADA), INC.
Plaintiffs
-and-
WONDERLAND COSTUMES LTD. and
MARY MARTINO
Defendants
REASONS FOR ORDER
AND ORDER