Anchor Brewing Co. v. Sleeman Brewing & Malting Co. Ltd., 2001 FCT 1066, [2002] 1 F.C. D-15


PRACTICE

Pleadings

Motion to Strike

Anchor Brewing Co. v. Sleeman Brewing & Malting Co.

T-1158-99

2001 FCT 1066, Lemieux J.

28/9/01

15 pp.

Appeal from decision of Associate Senior Prothonotary Giles (ASP) refusing, without written reasons, plaintiff's request second sentence of paragraph 19 of defendant's statement of defence, counterclaim be struck without leave to amend--In November 1989, plaintiff Anchor Brewing Company of San Francisco obtained registration in Canada of trade-mark "Steam" in association with beer--In June 1999, defendant obtained Canadian trade-mark registration for mark "Sleeman Steam Beer" in association with beer--Anchor commenced action against Sleeman for trade-mark infringement, passing-off, depreciation of goodwill--In May 2001, Sleeman filed statement of defence, counterclaim raising several defences including invalidity of Anchor's Canadian trade-mark "Steam"--Well-known test guiding review by judge of Prothonotary's discretionary decisions enunciated by MacGuigan J. in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425--Order made by Associate Senior Prothonotary herein discretionary--By not striking out second sentence from paragraph 19 of defendant's statement of defence, counterclaim, ASP not making decision vital to result of case--Prothonotary's order given without written reasons not automatically giving rise to hearing de novo on appeal before Court--De novo intervention not justified when, examining all circumstances, including nature of order made, evidence before Prothonotary, whether exercise of discretion involves essentially consideration of legal principles, reasonably demonstrate manner in which Prothonotary exercised discretion--Principle to be applied by ASP whether plain, obvious pleadings disclosed no reasonable cause of action, frivolous, redundant--ASP not satisfied plain and obvious test met--Reviewing exercise of ASP's discretion de novo not appropriate--Appellant must persuade Court ASP in exercise of discretion clearly wrong, misapprehended facts--Sentence sought to be struck simply statement of fact, along with other sentences in paragraph 19, answer to plaintiff's claim in relation to trade-mark "Steam"--Prothonotary's exercise of discretion not clearly wrong--No inconsistency in decision-making--Appeal dismissed.

v.478