PRACTICE |
Pleadings |
Amendments |
Almecon Industries Ltd. v. Anchortek Ltd.
T-992-92
Dawson J.
25/9/00
6 pp.
Appeal from prothonotary's order giving leave to defendant Anchortek to amend counterclaim and requiring plaintiff to produce settlement agreement concluded with third party (Austin Powder Ltd.)--Clear from amendment defendant's claim premised upon settlement agreement between plaintiff and Austin Powder Ltd., containing term Austin Powder required to cease purchasing Anchortek's non-impugned plugs from Anchortek and to begin purchasing plugs from plaintiff--Also providing should Anchortek be successful in present action, so that Energy Plug found not to infringe Almecon's patent, aforementioned provision of no force, effect--Anchortek alleging concession from Austin Powder with respect to purchase of non-impugned plugs flowed directly from allegation Anchortek's Energy Plug infringing plaintiff's patent--Plaintiff submitting statement in amendment that Anchortek's Energy Plug infringing plaintiff Almecon's patent false, misleading--Submitting statement made in legal proceeding not actionable under Trade-marks Act, s. 7(a); therefore statement made in settlement agreement not actionable; prothonotary erred in permitting amendment--Appeal dismissed--False or misleading statements made by patentee to third parties, tending to discredit competitor's business, wares or services, including statements product of third party infringing patent of patentee actionable under s. 7(a): S. & S. Industries Inc. v. Rowell, [1966] S.C.R. 419--No authority for plaintiff's proposition terms of settlement agreement cannot support cause of action pursuant to s. 7(a)--In absence of such authority, and where settlement agreement dealing with matters not at issue in original proceeding (in this case non-impugned plugs), not plain, obvious, or beyond doubt Anchortek's claim as based on settlement agreement will fail--Once amendment allowed, settlement documents primary documentary evidence upon which Anchortek will rely at trial--Hence settlement agreement relevant, should be produced as ordered--Trade-marks Act, R.S.C., 1985, c. T-13, s. 7(a).