Mission View Vineyards Ltd. v. Traut
T-930-90
Dubé J.
12/1/93
4 pp.
Motion to strike statement of claim -- Patent Act, s. 60(3) providing plaintiff in patent impeachment action shall, "before proceeding", give security for costs of patentee in such sum as Federal Court may direct -- Federal Court R. 700(3) permitting Court "at any time" to order plaintiff to give security for costs before "taking any further step" in patent infringement action -- No security for patentee's costs filed herein -- Defendant arguing failure to provide security for costs should result in dismissal of action or setting aside of statement of claim -- Plaintiff claiming not in interests of justice to start anew at this late stage -- Meriah Surf Products Ltd. v. Windsurfing International, Inc., [1981] 2 F.C. 291 (C.A.) holding defendant, plaintiff by counterclaim, entitled to seek impeachment of plaintiff's patent without deposit of security for costs -- Holding predecessor of s. 60(3) paramount and prevailed if conflict with R. 700(3) -- In Alros Products Ltd. v. Sealed Air Corporation (1980), 51 C.P.R. (2d) 66 (F.C.T.D.), Court granting ex parte application to set aside service of statement of claim where served before obtaining order for deposit of security for costs in patent impeachment action -- Considered appropriate as, subsequent to delivery thereof, defendant commenced action for infringement against plaintiff and another -- Defendant resisting Court's suggestion action be allowed to proceed while ordering plaintiff to give security for costs before taking further step -- S. 60(3) not only paramount, but mandatory ("plaintiff . . . shall, before proceeding . . . give security for costs") -- Service of statement of claim set aside, but Court not prepared to dismiss action -- As defendant filed defence, participated in discovery, took other interlocutory steps before launching motion, each party to bear own costs -- Patent Act, R.S.C., 1985, c. P-4, s. 60(3) -- Federal Court Rules, C.R.C., c. 663, R. 700(3).