Samsonite Canada Inc. v. Costco Wholesale Corp.
T-500-92
Noël J.
1/4/93
10 pp.
Appeal from A.S.P.'s order striking out paragraphs 10 and 17 of thrice further amended statement of defence -- Preliminary objection by plaintiff as to whether appeal from decision of A.S.P. properly before Court-Appeal procedure not invalidated -- Defect purely formal in nature, cannot defeat appeal proceeding otherwise validly launched -- Defendant's first ground of appeal ill-founded as R. 419 authorizing party to launch motion to strike at any stage of action, whether pleadings deemed closed or not -- Presumption of ownership of copyrights held to be sufficient to establish ownership of copyright in absence of evidence title lies with someone else -- Allegation plaintiff not first owner of copyrights in issue not reaching presumption of ownership arising from certificate of registration -- Presumption standing as prima facie evidence of ownership in work against all including first owner -- Conclusion of paragraph 10 plaintiff did not acquire copyrights in work by way of legal assignment entirely speculative and without factual foundation -- Onus on defendant to rebut presumption of ownership -- Last sentence of paragraph 10 also to be struck as being frivolous, vexatious, likely to embarrass fair trial of action and as abuse of process of Court -- Paragraph 17 of statement of defence must also be struck out -- Defendant granted right of further amendment with respect to paragraphs 10 and 17 of statement of defence -- Appeal dismissed -- Federal Court Rules, C.R.C., c. 663, RR. 419, 431.