Federal Court Decisions

Date: 19990622

Docket: T-1754-96

OTTAWA, ONTARIO, THIS 22nd DAY OF JUNE 1999

PRESENT:      THE HONOURABLE MR. JUSTICE J.E. DUBÉ

BETWEEN:

     THE CHASE MANHATTAN CORPORATION

     Plaintiff

     Defendant by Counterclaim

     - and -

     3133559 CANADA INC.

     Defendant

     Plaintiff by Counterclaim

     - and -

     UVA WINE PRESS & PASTA CORPORATION

     Defendants

     UPON an application on behalf of the plaintiff, The Chase Manhattan Corporation, for:

1.      An Order striking out paragraphs 17.(a), (b), (c), (d), (e), 20, 21, 22(d) of the Amended Statement of Defence and Counterclaim;

2.      An Order extending by fifteen (15) days, from the date of disposition of this motion the time within which the plaintiff (defendant by Counterclaim) may file its Reply and Defence to Counterclaim;

3.      Costs of this motion to the plaintiff (defendant by Counterclaim);

4.      Such further and other relief which this Honourable Court deems just.

     REASONS FOR ORDER

     The impugned paragraphs do not disclose material facts which could form the basis for the allegations of false and misleading statements under paragraph 7(a) of the Trade-marks Act ("the Act"). The paragraphs under attack refer to allegations made by the plaintiff in its Statements of Claim in this action (T-1754-96) and another Federal Court action (T-1173-98) against an individual, Joseph Castiglione. An allegation in a statement of claim cannot stand as a basis for claiming that the party who has commenced the action has made a false or misleading statement under paragraph 7(a) of the Act.

     Moreover, statements in pleadings are merely allegations which are to be considered privileged at common law. At the end of the day, if it turns out that these allegations are false, the party who is the victim of the allegations has other remedies.

     Consequently, it is plain and obvious that the paragraphs in question cannot form the basis for an action under paragraph 7(a) of the Act and as such cannot be allowed to stand¹.

O R D E R

1.      Paragraphs 17.(a), (b), (c), (d), (e), 20, 21, 22(d) of the Amended Statement of Defence and Counterclaim are struck out.

2.      The plaintiff shall file its Reply and Defence to Counterclaim on or before June 25, 1999.

3.      Costs of this motion to the plaintiff.

    

     Judge

__________________

     ¹      Levi Strauss & Co. v. Timberland Co., (1997) 74 C.P.R. (3d) 49; S & S Industries Inc. v. Rowell, [1966] S.C.R. 419 and Diamond Shamrock Corp. v. Hooker Chemicals & Plastics Corp. (1981), 60 C.P.R. (2d) 166.