PC Connexion, Inc. v. MPC Technologies Inc.
T-215-99
Hargrave P.
10/8/99
6 pp.
Motion to have amended defence, containing new pleading, counterclaim, removed from Court's file under r. 74(1) as document improperly filed-On close of pleadings no longer right to amend without leave-Plaintiff's claim for infringement of registered trademark "PC Connections"-Defendant filing amended defence containing new pleading, counterclaim-Plaintiff objecting to amended defence, counterclaim on grounds time for amendment without leave run out-Whether defence may be amended to add, for first time, counterclaim-Rules specific as to bringing of counterclaim-R. 189(2) requiring, in case of claim against plaintiff, that counterclaim be included in same document as statement of defence-R. 207(1) requiring statement of defence, counterclaim be served, filed within time required by r. 204, that is within 30 days of service of statement of claim-Defendant, having missed opportunity to graft counterclaim onto defence, as right, must now apply to Court for leave to add counterclaim-Whether party may amend without leave, under r. 200, after pleadings have automatically closed by application of r. 202-Where plaintiff decides not to file reply, substance of defence would be open to change even to eve of trial-Deemed close of proceedings in r. 202 vital as creating, by implication, joinder of issue, providing reference date for other procedures-R. 202 starts time running, precondition for production of documents, settlement discussions, discovery, admissions of fact, pre-trial conference-Close of pleadings provision putting some certainty into scheduling of steps-Ongoing amendment to last document filed, be it defence or reply, would create intolerable uncertainty, lack of finality-R. 200 must be read in conjunction with other Federal Court Rules which limit it, govern timing for litigation process-Must be interpreted in way that will allow Court's process to work effectively-Close of pleadings sensible point, otherwise discoveries, particulars would be in terms of moving target-Once pleadings closed, right to amend without leave must be foreclosed-Motion allowed-Federal Court Rules, 1998, SOR/98-106, rr. 189, 200, 202, 204, 207.