Date: 19990120
Docket: T-992-92
BETWEEN:
ALMECON INDUSTRIES LIMITED
Plaintiff
- and -
ANCHORTEK LTD., EXPLOSIVES LIMITED,
ACE EXPLOSIVES ETI LTD. and
WESTERN EXPLOSIVES LTD.
Defendants
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion for an order allowing an appeal from the order of Giles, A.S.P. filed on December 16, 1998.
[2] The Plaintiff brought the motion before Mr. Giles seeking leave to amend its Statement of Claim to include claims of inducement and procurement and joint-tortfeasance in this action alleging patent infringement by theDefendants.
[3] Mr. Giles refused to allow the Plaintiff to amend its Statement of Claim.
[4] At page 2 of his decision, Mr. Giles mentions at paragraph 5:
| I conclude from the admissions in the discovery of Paavo Auoma [sic] that the only evidence the plaintiff has that the distributors induced Anchortek, their supplier, to infringe was the evidence of Mr. Cherniak. The transcripts of the discovery of Mr. Cherniak produced to me indicate that various proposed plugs were produced to Mr. Cherniak for inspection and comment. There is no evidence that Mr. Cherniak encouraged Anchortek to produce any plug for use by any of the defendants, or in any way contributed suggestions to Anchortek with regard to the design of the plug. There is, thus, no evidence of any inducement of Anchortek by its distributors. I note also there is no evidence or allegation of any monopoly or near-monopoly situation by which the distributors might be thought to have induced Anchortek to produce a plug, allegations of inducement by the distributors could be struck from the amended claim, and will therefore not be allowed to be included in an amending statement of claim. |
[5] The standard of review of a prothonotary's order was set out by Justice MacGuigan in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425, at p. 463;
| "discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: |
| a) they are clearly wrong in the sense that the exercise of discretion by the prothonotary was based upon the wrong principle or upon a misapprehension of the facts, or |
| b) they raise questions vital to the final issue of the case. |
[6] I am of the opinion that the order raises a question "vital to the final issue of the case". In consequence, the Court will intervene and exercise its discretion de novo.
[7] Rule 75 of the Federal Court Rules, 1998, states:
| 75. (1) ... the Court may, on motion, at any time, allow a party to amend a document, on such terms as will protect the rights of all parties. |
75. (1) ... la Cour peut à tout moment, sur requête, autoriser une partie à modifier un document, aux conditions qui permettent de protéger les droits de toutes les parties. |
Rule 174 of the Federal Court Rules, 1998, states:
| 174. Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved. |
174. Tout acte de procédure contient un exposé concis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l'appui de ces faits. |
As was suggested by the plaintiff's counsel, on a motion to amend a statement of claim, the parties are not expected to prove their case to the required standard of proof. As Justice Jerome said in the Gleason Works v. Excalibar Tool Inc. 66 C.P.R. (3d):
| The Federal Court of Appeal has indicated that a plain reading of this provision is enough to interpret its import: Canderel Ltd. v. Canada [1994] 1 F.C. 3 at p. 10, [1993] 2 C.T.C. 213, 93 D.T.C. 5357. |
| The Plaintiff argued that the proposed amendments are wrong in law. However, in Société Canadienne de Métaux Reynolds v. Fednav Ltd. (1989), 18 A.C.W.S. (3d) 1234 (F.C.T.D.), Mr. Justice Dubé wrote that, "the motions judge does not anticipate whether an amendment will be successful at trial, he merely decides whether or not it ought to be filed". |
[8] The Associate Senior Prothonotary Giles was wrong in ruling that the paragraphs proposed by the Amended Statement of Claim should not be allowed because of a lack of evidence to support those allegations.
[9] It is my opinion that the amendments should be allowed for determining the real questions in controversy provided that they do not result in an injustice to the defendants not capable of being compensated for by an award of costs and that the amendments would serve the interest of justice.
[10] The defendants will have all the opportunity to complete the discoveries on the proposed amendments.
[11] The plaintiff has asked that paragraph 17 be removed from his proposed Amended Statement of Claim; following the consent of the defendants, the paragraph 17 is removed from the proposed Amended Statement of Claim.
THIS COURT ORDERS THAT:
The appeal from the order of Giles, A.S.P. filed on December 16, 1998, be granted;
The plaintiff be granted leave to amend its statement of claim by filing and serving an amended claim pursuant to the draft Twice Amended Statement of Claim;
With costs to the plaintiff.
"Pierre Blais"
Judge
Toronto, Ontario
January 20, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-992-92
| STYLE OF CAUSE: ALMECON INDUSTRIES LIMITED |
- and -
| ANCHORTEK LTD., EXPLOSIVES LIMITED, ACE EXPLOSIVES ETI LTD. and WESTERN EXPLOSIVES LTD. |
DATE OF HEARING: MONDAY, JANUARY 18, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
| AND ORDER BY: BLAIS J. |
DATED: TUESDAY, JANUARY 19, 1998
APPEARANCES: Mr. Bruce Stratton
For the Plaintiff
Ms. Shonagh L. McVean
For the Defendant Anchortek Ltd.
| Ms. Brenda Leeds |
| For the Defendants Explosives Limited, ACE Explosives ETI Ltd. and Western Explosives Ltd. |
SOLICITORS OF RECORD: Dimock Stratton Clarizio
| Barristers & Solicitors |
| Box 102 |
| 3202-20 Queen Street West |
| Toronto, Ontario |
| M5H 3R3 |
For the Plaintiff
| Solicitors of record ... continuation Smart & Biggar |
| Box 111 |
| 1500-438 University Avenue |
| Toronto, Ontario |
| M5G 2R8 |
For the Defendant Anchortek Ltd.
| Burnet, Duckworth & Palmer |
| First Canadian Centre |
| 1400-350 7 Avenue South West |
| Calgary, Alberta |
| T2P 3N9 |
| For the Defendants Explosives Limited, ACE Explosives ETI Ltd. and Western Explosives Ltd. |
FEDERAL COURT OF CANADA
Date: 19990119
Docket: T-992-92
Between:
| ALMECON INDUSTRIES LIMITED |
Plaintiff
- and -
| ANCHORTEK LTD., EXPLOSIVES LIMITED, ACE EXPLOSIVES ETI LTD. and WESTERN EXPLOSIVES LTD. |
Defendants
REASONS FOR ORDER
| AND ORDER |