Date: 19980904
Docket: T-1466-98
Ottawa, Ontario, the 4th day of September, 1998
Present: The Honourable Mr. Justice Pinard
ALCHEM CAPITAL CORPORATION
Plaintiff
- and -
NAUTILUS PLUS INC.
Defendant
Motion by the defendant for:
| - an order allowing the return of this motion and exempting the defendant in so far as necessary from the procedures and times for service and filing of this motion; |
| - an order under Rule 221(1)(a) striking out the title between paragraphs 14 and 15 of the Statement of Claim and striking out paragraphs 16, 17, 18, 19, 20, 21 and 26 of the plaintiff"s Statement of Claim dated July 17, 1998; |
| - an order suspending the time for objecting to the plaintiff"s Statement of Claim until the expiration of a 30-day period following the date on which the plaintiff provides an amended Statement of Claim to counsel for the defendant; |
| - any further order that is considered fair or appropriate having regard to the circumstances of the case. |
[Rules 8, 208 and 221(1)(a) of the Federal Court Rules]
ORDER
The motion is dismissed with costs. The defendant shall have fifteen (15) days from the date of this order in which to serve and file its statement of defence.
| YVON PINARD |
| J. |
Certified true translation
Bernard Olivier
Date: 19980904
Docket: T-1466-98
Between:
ALCHEM CAPITAL CORPORATION
Plaintiff
- and -
NAUTILUS PLUS INC.
Defendant
REASONS FOR ORDER
[1] At this stage in the proceedings, with no statement of defence yet filed, and a motion based on paragraph 221(1)(a) of the Federal Court Rules, 1998, the allegations at issue in the Statement of Claim should be deemed to have been proven and may not be struck out unless the Court is satisfied that "the case is beyond doubt" (see Attorney General of Canada v. Inuit Tapirisat et al. , [1980] 2 S.C.R. 735, at p. 740).
[2] In the context of the other allegations in the Statement of Claim, including paragraphs 22 and 26, I am far from satisfied that the alleged contract binding the parties does not concern a trade mark and is not ancillary thereto. The plaintiff is not claiming damages for breach of contract and is not asking for a declaratory judgment as to its contractual rights. There is nothing in the record to indicate that the validity of the contract or the interpretation of its terms is at issue. It seems to me, prima facie, that the contract is relied on for the purpose of determining the extent of the alleged infringement of the plaintiff"s trade mark and, as a consequence of such infringement, claiming punitive damages, which is entirely within the jurisdiction of this Court (see Titan Linkabit Corp. et al. v. S.E.E. See Electronic Engineering Inc. et al. (1992), 44 C.P.R. (3d) 469 (F.C.T.D.); R.W. Blacktop Ltd. et al. v. Artec Equipment Co. et al. (1991), 39 C.P.R. (3d) 432 (F.C.T.D.); Unilux Manufacturing Co. Inc. et al. v. Miller et al. (1994), 55 C.P.R. (3d) 199 (F.C.T.D.); Asse International Inc. et al. v. Svenska Statens Språkresor, AB (1996), 70 C.P.R. (3d) 222 (F.C.T.D.) and Pitney-Bowes Inc. v. Yale Security (Canada) Inc. (1987), 15 C.P.R. (3d) 347 (F.C.T.D.)).
[3] For all of these reasons, the motion shall be dismissed with costs.
[4] The defendant shall have fifteen (15) days from the date of the order in support of which these reasons are written in which to serve and file its statement of defence.
YVON PINARD
J.
OTTAWA, Ontario
September 4, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. T-1466-98 |
| STYLE: ALCHEM CAPITAL CORPORATION |
v. NAUTILUS PLUS INC.
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: AUGUST 31, 1998 |
REASONS FOR JUDGMENT OF PINARD J.
| DATED: SEPTEMBER 4, 1998 |
APPEARANCES:
MICHAEL CHARLES FOR THE PLAINTIFF
BARRY GAMACHE FOR THE DEFENDANT
SOLICITORS OF RECORD:
BERESKIN & PARR FOR THE PLAINTIFF
TORONTO, ONTARIO
LÉGER ROBIC RICHARD FOR THE DEFENDANT
MONTRÉAL, QUEBEC