T-6143-79
Floyd M. Baslow (Plaintiff)
v.
Fabri Trak Canada Limited, Avron Isadore Shore
and Gauvreau, Beaudry Ltd. (Defendants)
Trial Division, Jerome A.C.J.—Toronto, March
17; Ottawa, March 28, 1980.
Practice — Application to strike out pleadings — Parties —
Sentence in paragraph 18 of statement of claim struck out as
unrelated to circumstances giving rise to cause of action — No
reasonable cause of action shown against defendant Shore
merely being director of company — Question raised as to
suitability of plaintiffs use of the word "infringement" with
respect to unregistered trade mark — Trade Marks Act,
R.S.C. 1970, c. T-10, s. 20.
Alliance Tire & Rubber Co. Ltd. v. Alliance Tire &
Rubber Co. of Canada Ltd. [1972] F.C. 333, followed.
APPLICATION.
COUNSEL:
R. Uditsky for plaintiff.
I. Goldsmith, Q.C. for defendants.
SOLICITORS:
Greenblatt, Godinsky & Uditsky, Montreal,
for plaintiff.
Immanuel Goldsmith, Q.C., Toronto, for
defendants.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This is an application by coun
sel for the defendants, Fabri Trak Canada Limited
and Avron Isadore Shore, for an order:
(1) striking out the statement of claim as against
the defendant Avron Isadore Shore on the ground
that it discloses no reasonable cause of action as
against the defendant;
(2) striking out
(i) the last sentence of paragraph 18; and
(ii) paragraph 19
of the statement of claim on the ground that they
disclose no reasonable cause of action;
(3) striking out the following portions of the
prayer for relief, viz.:
(i) paragraph (b);
(ii) the words "from infringing the Plaintiffs
rights in the said trade mark `FABRI TRAK' and
ordering them, and each of them, to discontinue
using the said trade mark `FABRI TRAK' in
association with wares not emanating from the
Plaintiff," in paragraph (d);
(iii) paragraph (e);
(iv) the words "and for the infringement of
Plaintiffs rights in the said trade mark `FABRI
TRAK' " in paragraph (i);
(4) such further or other order as may seem just;
(5) the costs of this application.
It is clear that the last sentence of paragraph 18
of the statement of claim in its present form does
not relate to the circumstances which give rise to
this action and it must be struck out.
It is equally clear to me that the statement of
claim in its present form does not disclose a
reasonable cause of action against the defendant
Avron Isadore Shore. The sense of paragraph 21
of the statement of claim is that the defendant
Fabri Trak Canada Limited managed all of the
corporation's activities and so was the director of
those acts which form the subject matter of this
action. The very clear language of Heald J. in
Alliance Tire & Rubber Co. Ltd. v. Alliance Tire
& Rubber Co. of Canada Ltd. [ 1972] F.C. 333,
leaves no doubt that this sort of allegation in itself
falls short of a cause of action against a corporate
director.
In line 5 of paragraph 21 of the statement of
claim, with the following words: "as director of the
said actions of the said Defendant hereinabove
alleged", the plaintiff may be attempting to bring
himself within the frequently quoted language of
Lord Buckmaster in Rainham Chemical Works,
Limited (In Liquidation) v. Belvedere Fish Guano
Company, Limited [1921] 2 A.C. 465 at 476:
If the company was really trading independently on its own
account, the fact that it was directed by Messrs. Feldman and
Partridge would not render them responsible for its tortious
acts unless, indeed, they were acts expressly directed by them.
but even if I extend the necessary generosity of
interpretation, the plaintiff remains in difficulty
because of the failure, exactly as in Alliance Tire
& Rubber Co. Ltd. (supra), to allege any facts
whatsoever in the statement of claim upon which a
judgment could be based against the defendant
Shore.
I am not able to accept the third contention of
counsel for the defendant that since the trade
mark in issue is unregistered and since actions for
infringement are established by section 20 of the
Trade Marks Act, R.S.C. 1970, c. T-10, only in
respect to registered trade marks, this plaintiff
should be by this order prohibited from the use of
the words "infringement in the rights of the Plain
tiff in the said trade mark". Rights exist in trade
marks whether registered or unregistered and
while the use of the word "infringement" when
relief is sought in respect to an unregistered trade
mark may tend to blur the lines between the two
kinds of claims, I am not able to find any authority
which prohibits a plaintiff from describing a griev
ance as an infringement of the plaintiff's rights in
the trade mark or from incorporating that ter
minology in the prayer for relief. Since the defend
ant is to succeed on the first two grounds, the
plaintiff may wish to re-examine the choice of
language in respect to this third matter but I am
unable to order that the statement of claim be
purged of the term "infringement" simply because
the trade mark is unregistered.
ORDER
The words "The Defendants are thus passing off
other wares as and for those ordered or requested"
are hereby struck out from paragraph 18 of the
statement of claim and the statement of claim is
hereby struck out against the defendant Avron
Isadore Shore. The plaintiff shall have thirty days
within which to file and serve an amended state
ment of claim. The defendants shall have their
costs of this motion.
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.