Date: 19990415
Docket No.: T-301-99
OTTAWA, ONTARIO, THE 15th DAY OF APRIL 1999
PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
IAN FITZWILLIAM
Plaintiff
- and -
ROLLS-ROYCE plc, ROLLS-ROYCE MOTOR CARS LIMITED,
BENTLEY MOTORS LIMITED, BAYERISCHE MOTOREN WERKE AG,
VOLKSWAGEN AG, SIR RALPH ROBINS, BERND PISCHETSRIEDER
AND DR. FERDINAND PIECH
Respondents
ORDER
UPON motion brought by the corporate defendants for an order:
| (a) striking the statement of claim in its entirety; |
| (b) that the plaintiff pay the defendants their costs of this motion in accordance with the maximum number of units under Column V of Tariff B of the Federal Court Rules forthwith; |
THIS COURT ORDERS THAT:
| 1. The statement of claim is struck out as disclosing no cause of action. |
| 2. One set of costs for this motion and the motion in Docket No. T-345-99, in accordance with Column III of Tariff B, is awarded to the corporate defendants. |
____________________________
Associate Chief Justice
Date: 19990415
Docket No.: T-345-99
OTTAWA, ONTARIO, THE 15th DAY OF APRIL 1999
PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
IAN FITZWILLIAM
Plaintiff
- and -
ROLLS-ROYCE plc, ROLLS-ROYCE MOTOR CARS LIMITED,
BENTLEY MOTORS LIMITED, BAYERISCHE MOTOREN WERKE AG,
VOLKSWAGEN AG, SIR RALPH ROBINS, BERND PISCHETSRIEDER
AND DR. FERDINAND PIECH
Respondents
ORDER
UPON motion brought by the corporate defendants for an order:
| (a) striking the statement of claim in its entirety; |
| (b) that the plaintiff pay the defendants their costs of this motion in accordance with the maximum number of units under Column V of Tariff B of the Federal Court Rules forthwith; |
THIS COURT ORDERS THAT:
| 1. The statement of claim is struck out as disclosing no cause of action. |
| 2. One set of costs for this motion and the motion in Docket No. T-301-99, in accordance with Column III of Tariff B, is awarded to the corporate defendants. |
____________________________
Associate Chief Justice
Date: 19990415
Dockets: T-301-99
T-345-99
BETWEEN:
IAN FITZWILLIAM
Plaintiff
- and -
ROLLS-ROYCE plc, ROLLS-ROYCE MOTOR CARS LIMITED,
BENTLEY MOTORS LIMITED, BAYERISCHE MOTOREN WERKE AG,
VOLKSWAGEN AG, SIR RALPH ROBINS, BERND PISCHETSRIEDER
AND DR. FERDINAND PIECH
Respondents
REASONS FOR ORDER
RICHARD A.C.J.:
[1] The corporate defendants, Rolls-Royce plc, Rolls-Royce Motor Cars Limited and Bentley Motors Limited, have brought two motions to strike out, in their entirety, two separate statements of claim in two actions brought by the same plaintiff. The actions are: T-301-99 and T-345-99. These reasons apply to both actions.
[2] In the first action, No. T-301-99, the plaintiff seeks damages and injunctive relief to restrain the defendants from misappropriating the plaintiff"s intellectual property, infringing the trade-marks ROLLS-ROYCE MUSEUM and ROLLS-ROYCE MOTOR MUSEUM, and using these trade-marks to depreciate the goodwill attached thereto. The plaintiff also seeks an order directing the defendant Rolls-Royce plc to relinquish its registration for the domain name ROLLS-ROYCE MUSEUMCOM.
In the section action, No. T-345-99, the plaintiff seeks damages and injunctive relief to restrain the defendants from infringing the trade-marks ROLLS-ROYCE COLLECTORS" CLUB and R.R.C.C., causing the plaintiff to refrain from operating as ROLLS-ROYCE COLLECTORS" CLUB and the R.R.C.C., causing the plaintiff to relinquish the trade-marks and using them in a manner likely to have the effect of depreciating the goodwill attaching thereto.
The first action was commenced on February 26, 1999 and the second on March 1, 1999.
The two motions to strike both statements of claim were filed on March 11, 1999.
The record discloses that the corporate defendants commenced an action against the plaintiff in the Federal Court, Trial Division, on November 26, 1998 (Court No. T-2221-98) seeking a declaration that the plaintiff herein has infringed the trade-mark owned by the corporate defendants herein. The plaintiff"s statement of defence in that action was struck out on January 28, 1999 with leave for the plaintiff to file amended pleadings which comply with the Rules and Orders of this Court within 60 days of the Order. That Order is under appeal.
The plaintiff then commenced an expungement proceeding in this Court by way of a Notice of Application dated February 9, 1999 seeking to expunge the trade-marks owned by the corporate defendants herein.
[3] On January 29, 1999, the plaintiff herein also commenced an action against the defendants herein by way of a statement of claim in the Ontario Court (General Division) claiming an injunction and damages relating to the use of the same trade-marks.
[4] The defendants maintain that the plaintiff"s statements of claim should be struck on the basis they do not disclose a reasonable cause of action and are scandalous, frivolous and vexatious. The defendants also state that the present actions commenced by the plaintiff are, in these circumstances, an abuse of the process of the Court and request costs at the highest level of units available under Column V of Tariff B of the Federal Court Rules.
[5] Having considered the submissions of the parties, I have concluded that the motions to strike the statements of claim in both actions as disclosing no cause of action must be allowed.
[6] The striking out of a pleading is a serious matter for which a high threshold is set. In determining whether a cause of action exists, material facts pleaded are to be taken as proven. If the facts as proven are susceptible of meeting with success or disclose a cause of action the pleadings will stand. The plaintiff must however plead the material facts on which he bases his conclusions (Ayangma v. Canada, [1998] F.C.J. No. 1396) and his claim can not merely consist of bare assertions without a factual basis (Vojic v. M.N.R. [1987] 2 C.T.C. 203, 87 D.T.C. 5384 (F.C.A.)).
[7] In both actions, accepting the stated facts as proven, do not support a cause of action. The particular fact on which the plaintiff relies in alleging that the defendants embarked on a scheme to misappropriate, restrain, interfere with and suppress his plan to establish a worldwide association of Rolls Royce Motors Museums, is in effect the action commenced by the defendants herein in the Federal Court of Canada (Docket No. T-2221-98).
[8] The plaintiff makes a number of claims and bald allegations for which he establishes no factual basis and does not provide particulars to which the defendants can respond.
[9] As to the material facts by way of correspondence on which the plaintiff relies to instruct his claim, they are not sufficient to establish a basis upon which his action can be founded or hope to succeed.
[10] Accordingly, the statement of claim is struck out as disclosing no cause of action.
[11] There will be one set of costs for both motions, in accordance with Column III of Tariff B, awarded to the corporate defendants.
____________________________
Associate Chief Justice
Ottawa, Ontario
April 15, 1999