PRACTICE |
Pleadings |
Motion to Strike |
Garford Pty. Ltd. v. Villgren
T-1291-04
2004 FC 1550, Lafrenière P.
3/11/04
9 pp.
Motion to strike out statement of claim alleging patent infringement on ground constituting abuse of process-- Plaintiff alleging defendants personally liable for acts of infringement of two companies under their control--Also alleging defendants inducing third parties to infringe plaintiff's patent--Plaintiff instituting earlier related action against two companies regarding same patent--Plaintiff owner of patent relating to rock anchor used in mining operations, methods and devices for producing same--Bringing present action regarding same patent, seeking same relief as in related action on ground possible injunction, restraining order against company ineffective--Although knowing of defendants' personal involvement in directing companies' actions well before related action instituted, plaintiff neither taking any steps to amend pleadings in related action nor moving to add plaintiffs as defendants under Federal Court Rules, 1998, r. 104, despite canvassing defendants' degree of control over companies during examinations for discovery in related action--R. 104 governing joinder of parties, providing Court may order person who ought to have been joined as party be added as party--Court considering propriety of bringing separate proceedings against different parties in Vogo Inc. v. Acme Window Hardware Ltd. (2004), 256 F.T.R. 37 (F.C.) --In Vogo, Court dismissing appeal from prothonotary's order refusing to strike statement of claim, allowing consolidation of actions to avoid multiplicity of proceedings, promote expeditious and inexpensive determination--Vogo involving particular fact situation where two proceedings not yet beyond discovery stage--In Vogo, consolidation of two proceedings not resulting in prejudice to defendants in either action--Vogo not to be viewed as Court's endorsement of practise of bringing multiple proceedings--Pre-trial conference already conducted in related action in present case --Consolidation order potentially jeopardizing trial dates in related action since present action only at pleading stage-- Action vexatious and constituting abuse of Court's process since two separate actions brought involving same patent, same issues and seeking injunctive relief against same parties --Action dismissed without prejudice to plaintiff's right to seek leave to amend related proceeding--Motion allowed-- Federal Court Rules, 1998, SOR/98-106, r. 104.