Pengo Hydra Pull of Canada Limited (Appellant)
v.
George L. Leithiser and The Timberland Ellicott
Limited (Respondents)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—Ottawa, November 9, 1972.
Patents—Pleadings—Plea of ambiguity—Necessity of
pleading.
APPEAL from Trial Division.
I. Goldsmith, Q.C., and D. J. Bellehumeur for
appellant.
R. G. McClenahan and D. I. Lack for
respondents.
JACKET' C.J. (orally)—.This is an appeal from
a judgment of the Trial Division requiring par
ticulars of a plea of ambiguity in the claims in a
patent.
While it has always been open to the Court to
hold a claim in a patent invalid for ambiguity
even though it was not pleaded, and it must
continue to be so, it does not follow that an
argument based on ambiguity that has not been
pleaded will be acted on without giving the
opponent a fair opportunity to prepare to
answer it on such terms as to costs as seem
appropriate.
Pleading of ambiguity has always been
regarded as proper in order to avoid taking an
opponent by surprise and is certainly necessary
if it involves a question that calls for evidence.
A pleading of ambiguity, like any other plead
ing, must be framed with sufficient particulari
ty. In our view, it is not sufficiently particular
unless it identifies the ambiguity or ambiguities
on which it is proposed to rely.
We see no reason to interfere with the discre
tion of the learned trial judge in this case.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.