Montréal, Quebec, the 27th day of April 2006
Present: Richard Morneau, Prothonotary
BETWEEN:
Plaintiff/
Defendant by Counterclaim
and
LES INSTALLATIONS SPORTIVES DEFARGO INC.
and
TRIEXE MANAGEMENT GROUP INC.,
doing business as SPORTEXE
Defendants/
Plaintiffs by Counterclaim
and
CITY OF LONGUEUIL
and
THE BOARD OF SCHOOL TRUSTEES
OF SCHOOL DISTRICT 42
and
CHALEUR MINOR SOCCER
and
SAINT MARY=S UNIVERSITY IN
HALIFAX, NOVA SCOTIA
Third Parties
REASONS FOR ORDER AND ORDER
[1] Whereas the Court has considered the motion records and heard counsel for the parties on the motions for particulars made respectively by the plaintiff and defendant by counterclaim Fieldturf (IP) Inc. (hereinafter Fieldturf) on the one hand and by the defendants and plaintiffs by counterclaim Les Installations Sportives Defargo Inc. and Triexe Management Group Inc. (hereinafter Defargo) on the other hand;
DEFARGO MOTION
[2] WHEREAS the particulars required at the written pleading stage may not be as specific as examinations for discovery (see Quality Goods I.M.D. Inc. v. R.S.M. International Active Wear Inc. (1995), 63 C.P.R. (3d) 499 (F.C.), and 135183 Canada Inc. v. Gestion Valentine Inc. (1997), 130 F.T.R. 152);
[3] WHEREAS the Court is more than satisfied that Defargo is familiar with the two Fieldturf Canadian patents at issue in the latter’s amended statement of claim (see paragraph 2.1 of that statement of claim), that the same is true for the claims in those patents (see paragraphs 29 and 29A of that statement of claim) and for the essentials of any invention covered by the patents, and this is especially true since Defargo itself has in the past in case T-491-04 brought a declaratory action in which it asked this Court to rule, inter alia, that none of the claims in these two patents covered its own products, products which cannot but be very similar to its products in the case at bar;
[4] WHEREAS further any particulars regarding the Fieldturf products sold to the public are quite irrelevant to the issue between the parties at this stage;
[5] WHEREAS finally the sequence of events described by Fieldturf in the first part of its written submissions filed in opposition to the Defargo motion leads the Court to find that Defargo must indeed be regarded as having waived all particulars;
[6] WHEREAS accordingly, this motion must be dismissed as to all relief, with costs;
FIELDTURF MOTION
[7] WHEREAS dismissal of the Defargo motion means the latter may not and should not expect particulars from Fieldturf on its amended statement of claim before dealing with the particulars sought by the latter regarding the “Amended and Consolidated Statement of Defence and Counter‑claim of Defendants” (hereinafter the amended defence);
[8] WHEREAS it has been held in Contour Optik Inc. v. Hakim Optical Laboratory Ltd. (2001), 201 F.T.R. 152 and Denharco v. Forespro Inc. (1999) F.C. No. 849, on the need to set out precisely and exhaustively the prior art on which a party is relying;
[9] WHEREAS this motion by Fieldturf should be allowed with costs and Defargo required to provide all the particulars set out by Fieldturf in paragraphs 1 to 8 (pages 2 and 3) of its notice of motion dated March 31, 2006, by serving and filing a re-amended defence on, or before, May 29, 2006;
ORDER
Defargo’s motion is dismissed, the whole with costs;
Fieldturf’s motion is allowed with costs, and Defargo shall accordingly provide all the particulars set out by Fieldturf in paragraphs 1 to 8 (pages 2 and 3) of its notice of motion dated March 31, 2006, by serving and filing of a re-amended defence on, or before, May 29, 2006.
As to the calendar to be followed in future in the case at bar, in view of the May 29, 2006 deadline imposed on Defargo, the deadlines for points 4 to 7 specified in the order of March 2, 2006 are respectively postponed to June 20, July 14, August 24 and September 15, 2006 respectively.
Any other form of relief sought by the parties is denied.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1473-04
STYLE OF CAUSE: FIELDTURF INC. v. LES INSTALLATIONS SPORTIVES DEFARGO INC. ET AL.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 24, 2006
REASONS FOR ORDER AND ORDER BY: Prothonotary Morneau
APPEARANCES:
|
David Assor
|
FOR THE PLAINTIFF/DEFENDANT BY COUNTERCLAIM
|
|
Pascal Lauzon |
FOR THE DEFENDANTS/PLAINTIFFS BY COUNTERCLAIM |
SOLICITORS OF RECORD:
|
SPIEGEL, SOHMER Montréal, Quebec
|
FOR THE PLAINTIFF/DEFENDANT BY COUNTERCLAIM
|
|
BROUILLETTE, CHARPENTIER, FORTIN Montréal, Quebec
|
FOR THE DEFENDANTS/PLAINTIFFS BY COUNTERCLAIM |