T-2089-96
BETWEEN:
JACQUES SINGER
and
ONOMAT CANADA INC.,
Plaintiffs
AND
SIGNALISATION KALITEC INC.
and
JEAN LAPOINTE,
Defendants
REASONS FOR ORDER
RICHARD MORNEAU,
PROTHONOTARY:
This is a motion by the defendants in an action for patent infringement to have the defendant Jean Lapointe struck from the declaration on the ground that paragraphs 4, 14 and 16 of the declaration fail to disclose sufficient material facts to properly engage the liability of Jean Lapointe as a defendant in his personal capacity.
The defendants are also seeking under Rule 415 further and better particulars in regard to paragraphs 13 and 15 of the declaration.
Analysis
Paragraphs 4, 14 and 16 of the declaration read as follows:
| 4. The Defendant JEAN LAPOINTE is domiciled and resides at 50, boul. Ste-Rose in Laval, Province of Quebec, H7L 3K1, and is principal shareholder and administrator of the defendant KALITEC. |
| 14. The Defendant JEAN LAPOINTE, because of his duties and of his implication in the day-to-day activities and management of the Defendant KALITEC has, at all material times, and continues to procure, order, authorize and direct the activities of the Defendant KALITEC including those activities relevant to this action. |
| 16. The Defendants have engaged in their acts of infringement of Canadian Patent No. 2,056,807 in wilful disregard for the rights of the Plaintiffs. The Defendant LAPOINTE knowingly and willingly authorized or directed the infringing activities of the Defendant KALITEC. |
In view of the observations made by this Court in Painblanc v. Kastner et al. (1994), 58 C.P.R. (3d) 507, and the decisions cited therein, I am of the opinion that the allegations made in paragraphs 4, 14 and 16 of the declaration fail to disclose sufficient material facts to properly engage the liability of Jean Lapointe as a defendant in his personal capacity.
I will therefore order that the name of Jean Lapointe be struck as a defendant in this action and that all the allegations in the declaration referring to this individual be struck, subject to the right of the plaintiffs to file and serve, no later than October 27, 1997 or within any other period agreed to by the parties, an amendment alleging material facts which, if proved, would establish the liability of Jean Lapointe.
Furthermore, counsel for the plaintiffs conceded that paragraphs 13 and 15 of the declaration could be amended to establish clearly what product of the defendants is at issue. The plaintiffs will have to comply in this regard within the same period as that referred to above. This will dispose of the defendants" motion for particulars. Consequently, counsel for the defendants noted that the addition of such particulars should lead her to amend her cross-demand to abandon any claim for punitive and exemplary damages and, in this regard, and in order to reply to any amendment that will be made to the declaration, the defendants will be authorized to amend their defence and cross-demand.
| Richard Morneau |
| Prothonotary |
Montréal, Quebec
October 2, 1997
Certified true translation
Christiane Delon
Federal Court of Canada
File No. T-2089-96
BETWEEN
JACQUES SINGER
and
ONOMAT CANADA INC.,
Plaintiffs
- and -
SIGNALISATION KALITEC INC.
and
JEAN LAPOINTE,
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. T-2089-96 |
| STYLE: JACQUES SINGER |
| and |
| ONOMAT CANADA INC., |
| Plaintiffs |
| - and - |
| SIGNALISATION KALITEC INC. |
| and |
| JEAN LAPOINTE, |
| Defendants |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: September 29, 1997 |
REASONS FOR ORDER BY RICHARD MORNEAU, PROTHONOTARY
| DATED: October 2, 1997 |
APPEARANCES:
| Louis Landreville FOR THE PLAINTIFFS |
| Sylvie Lequin FOR THE DEFENDANTS |
SOLICITORS OF RECORD:
Louis Landreville
Landreville et Ferreira
| Montréal, Quebec FOR THE PLAINTIFFS |
Sylvie Lequin
| Brossard, Quebec FOR THE DEFENDANTS |