Technologie Micro-Contrôle Inc. v. Technologie Labtronix Inc.
T-1805-96
Noël J.
5/9/96
17 pp.
Motion by defendants under Federal Court Rules, R. 419, to strike out all plaintiff's pleadings, dismiss plaintiff's action and put end to proceedings before Court-Plaintiff applying for interlocutory injunction to order defendant to cease offering for sale, manufacturing or doing business in design diagrams of control cards, etc., for which plaintiff had exclusive rights-Plaintiff firm operating in electronics field with particular expertise in development and design of printed circuits or computer motherboards and programs installed on these boards, used in design of video lottery games-Corporate defendant firm operating in informatics field-Defendant Gérald Duhamel president of defendant company-Governing principle in striking out statement of claim set down in Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735-Court should dismiss action or strike claim made by plaintiff only in plain and obvious cases and where satisfied case "beyond doubt"-Defendants submitting plaintiff's pleading should be struck out since action already brought by defendants against plaintiff in Superior Court and proceedings concerned in part same property and evidence-Defendants further submitting plaintiff's action disclosed no reasonable cause of action-Defendants' motion to dismiss action and strike out pleadings dismissed-If plaintiff's allegation corporate defendant unlawfully reproducing program components created and developed by plaintiff deemed proven, could not be said "plain and obvious" plaintiff's statement of claim disclosed no reasonable cause of action-Moreover, fact plaintiff seeking same remedy in Superior Court action not sufficient reason to dismiss action-Test for issuing injunction considered in RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311-Preliminary assessment must be made of merits of case to ensure serious question to be tried, must be determined whether applicant would suffer irreparable harm if application refused and assessment must be made as to which party would suffer greater harm from granting or refusing remedy pending decision on merits-Plaintiff's claim neither vexatious nor frivolous and demonstrating existence of serious question to be tried-Moreover, if plaintiff denied interlocutory injunction, defendants' reproduction of cards and program components in dispute would cause it irreparable harm-Based on the evidence, attempt to gauge magnitude of plaintiff's losses resulting from defendants' activities would in all probability be thwarted since it depends on defendants' cooperation and honesty-Balance of inconvenience test also militating in plaintiff's favour-Plaintiff in start-up phase-Disputed cards its sole products to date-These products having significant commercial potential but short shelf life-Defendants on other hand having variety of products and diversified clientele and less likely to be seriously affected by issuance of injunction-Order should go for interlocutory injunction-Order for interlocutory injunction to provide $5,000 deposited by plaintiff to remain in force-Plaintiff also to keep separate accounting of sale of products object of action and to pay into trust 5% of gross proceeds of those sales-Federal Court Rules, C.R.C., c. 663, R. 419.