Imperial Manufacturing Group Inc. v. Decor Grates Incorporated., 2015 FCA 100 (Justice Stratas, Justice Webb, Justice Scott)
April 20, 2015
Pierre Robichaud and Alessandro Colonnier (Andrews Robichaund P.C.) for the Appellants
R. Aaron Rubinoff and John Siwiec (Perley-Robertson, Hill & McDougall LLP) for the Respondent
On appeal from the Federal Court (2013 FC 1189), the Court considered the scope of particulars for a statement of claim in an industrial design proceeding. The particulars requested related to whether the author had assigned the design to the plaintiff and possible publication of the design more than one year prior to the filing date.
The Court of Appeal addressed the issue of standard of review, holding that the Supreme Court’s Housen decision (2002 SCC 33) imposing a “palpable and overriding error” standard for all discretionary interlocutory orders and rejected the David Bull, [1995] 1 FC 588 line of cases.
On the requested particulars, distinguishing pleadings particulars from discovery particulars, the Court stated that the requested particulars were for discovery and were not required in order to plead.
For the particulars on whether the plaintiff was a ‘proprietor’ of the industrial design, the Court said a challenge could be made if the defendant had some evidence but, “if the appellants do not have any conflicting evidence at all, they cannot plead they have “proof to the contrary” and to do so would be an abuse of process.
In conclusion the appellant did not meet the threshold of palpable and overriding error in the lower Court’s findings of mixed fact and law. The appeal was dismissed with costs.
By: Alan Macek – Dimock Stratton LLP