Imperial Parking Ltd. v. Barrington
T-1427-95
Hargrave P.
28/11/95
9 pp.
Motion under R. 419 to strike portions of defence to action alleging copyright infringement of plaintiff's signage, violation notice, short form lease-Defendant Barrington employee of plaintiff-Defence alleging constructive dismissal or repudiation of employment contract through abusive, humiliating and unconscionable actions to defendant by plaintiff's employee-Plaintiff submitting impugned portions of defence not relevant to innocent infringement and ought to be struck out-Defendants alleging impugned portions of defence response to portions of statement of claim alleging Barrington voluntarily left employment, referring to terms of employment agreement-Motion dismissed-If defendant proving (1) on date of infringement unaware of copyright; (2) no reasonable grounds for suspecting copyright existed, then plaintiff only entitled to injunction: Copyright Act, s. 39-S. 53(2) providing prima facie presumptions of copyright and ownership created on production of certificate of registration-Copyright not registered herein until shortly before action commenced, and well after alleged infringement began-Plaintiff allowed to set out in statement of claim matters merely tending to increase amount of damages recoverable-Generally no obligation on defendant to plead to damages, unless matters wishes to introduce in mitigation likely to take plaintiff by surprise or would raise new issues of fact-Impugned portions of defence falling within latter category-As plaintiff in statement of claim raising manner in which Barrington leaving plaintiff's employment and confidentiality aspects of employment contract, defendants ought to be allowed to raise material relevant to keeping plaintiff's enhanced damages claim under control-Material not prejudicial, merely surplus-Better left in defence so that trial judge may hear evidence, consider relevancy of constructive dismissal, status of employment contract-Copyright Act, R.S.C., 1985, c. C-42, ss. 39, 53(2)-Federal Court Rules, C.R.C., c. 663, R. 419.