PRACTICE |
Judgments and Orders |
Reversal or Variation |
Terra Nova Shoes Ltd. v. Nike Inc.
T-778-01
2003 FC 1053, Russell J.
10/9/03
11 pp.
Appeal on motion to strike--Motion for order reversing, in part, order of Prothonotary Lafrenière dated May 21, 2003-- Defendants argue close examination of relevant documents showing use of word "terra" in association with third party footwear and/or related items, and also indicates these products available for sale in Canada--Documents amount to list of dealers and products--Word "terra" does appear, but no link between word "terra" and any products available in Canada--Even on basis of relevant documents produced in this appeal motion, defendants have offered no facts, only assumptions and speculation in support of allegations of third party uses, as Prothonotary Lafrenière concluded in decision which was not, therefore, clearly wrong in this regard--Defendants argue further, as matter of law, Prothonotary erred in ordering impugned pleadings be struck out--Discretion to strike out pleadings should only be exercised in plain and obvious cases where Court satisfied beyond doubt allegation cannot be supported and certain to fail because it contains radical defect--Claim that does not sufficiently reveal facts upon which cause of action based makes it impossible for opposing party to answer claim or Court to regulate action--Hence, action frivolous, vexatious --As defendants have not yet offered evidence on impugned paragraphs of claim, paragraphs remain frivolous and vexatious--Issue raised by defendants whether this clear rule continues to apply where other party has pleaded over pleadings at issue--In case at bar, plaintiffs have not pleaded over--In their reply, plaintiffs have simply asked defendants to prove assertions of third party usage and have waited to give defendants sufficient time to produce details concerning third party products sold in Canada--As discovery process substantially complete and defendants have still not produced such details, now appropriate time in proceedings to strike impugned paragraphs--Nothing wrong with Prothonotary Lafrenière's decision, and exercise of discretion not based upon wrong principle of law or misapprehension of facts-- Appeal dismissed.