T-1176-97
Between:
DISCOUNT CAR & TRUCK RENTALS LTD.
Plaintiff
- and -
ENTERPRISE RENT-A-CAR COMPANY
and 1009329 ONTARIO LIMITED carrying
on business as ENTERPRISE RENT-A-CAR
Defendants
REASONS FOR ORDER
RICHARD, J.:
This is an appeal by the defendants from the order of the Associate Senior Prothonotary dated July 28, 1997 striking out paragraph 15 of the Statement of Claim but with leave to file an amended Statement of Claim by deleting evidence of the admission.
Paragraph 15 of the original Statement of Claim filed June 3, 1997, read as follows:
| The U.S. Company has filed a Statement of Opposition to the Plaintiff's Canadian trade-mark application 797,168 for the trade-mark WE'LL PICK YOU UP. In the course of opposition proceedings in the Canadian Trade-Marks Office relating to the Plaintiff's trade-mark application, the U.S. Company [Enterprise Rent-A-Car Company] has admitted that the use of the Plaintiff's trade-mark along with the Defendants' trade-mark in the marketplace has caused confusion. A copy of the Statement of Opposition is attached hereto as Schedule "A" and incorporated by reference. |
It appears that the deletion the Associate Senior Prothonotary had in mind was to Schedule "A".
The appellants allege that the Associate Senior Prothonotary in deciding not to strike all of paragraph 15, was clearly wrong and committed an error of law. They submit that paragraph 15 pleads and relies on an allegation made by the U.S. Company in another proceeding, namely, a Statement of Opposition in the Trade-Marks Office and that such an allegation is a "judicial admission" which does not constitute an admission except in the proceedings in which it is made. They also submit that the pleading is in the nature of evidence.
Without this paragraph there does not appear to be an allegation in the Statement of Claim which would permit the introduction of the evidence recited.
While the admission contained in an allegation in a Statement of Opposition may not be entirely relevant to the passing-off action, under Rule 419(a)(b) through (f) of the Federal Court Rules, it must be established that the pleading is so clearly immaterial, frivolous, embarrassing or abusive that it is obviously forlorn and futile. The Court will not strike mere surplus statements where no prejudice flows from them.1
The question of the admissibility of evidence of the sort referred to in paragraph 15 ought to be left to the Trial Judge as and when the evidence is tendered.2
The Associate Senior Prothonotary did not commit any reviewable error. Accordingly, the appeal is dismissed with costs to the respondent (plaintiff).
"John D. Richard"
Judge
Toronto, Ontario
September 9, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1176-97
STYLE OF CAUSE: DISCOUNT CAR & TRUCK RENTALS
LTD.
Plaintiff
- and -
ENTERPRISE RENT-A-CAR COMPANY
and 1009329 ONTARIO LIMITED carrying
on business as ENTERPRISE RENT-A-CAR
Defendants
DATE OF HEARING: SEPTEMBER 8, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: RICHARD, J.
DATED: SEPTEMBER 9, 1997
APPEARANCES:
Ms. Debra L. Montgomery
For the Plaintiff
Mr. Michael E. Charles
For the Defendants
SOLICITORS OF RECORD:
Sim, Hughes, Ashton & McKay
Barristers and Solicitors
330 University Avenue
6th Floor
Toronto, Ontario
M5G 1R7
For the Plaintiff
BERESKIN & PARR
Barristers & Solicitors
Box 401, Suite 4000
40th Floor
40 King Street West
Toronto, Ontario
M5H 3Y2
For the Defendants
FEDERAL COURT OF CANADA
Court No.: T-1176-97
Between:
DISCOUNT CAR & TRUCK RENTALS
LTD.
Plaintiff
- and -
ENTERPRISE RENT-A-CAR COMPANY
and 1009329 ONTARIO LIMITED
carrying on business as
ENTERPRISE RENT-A-CAR
Defendants
REASONS FOR ORDER
__________________
1 Copperhead Brewing Co. v. John Labatt Ltd. (1995) 61 C.P.R. (3d) 317 at 322 (F.C.T.D.)
2 Beatty Bros. Limited v. Lovell Manufacturing Company, et al. [1959] S.C.R. 245 at 248