DYNAFLAIR CORPORATION CANADA INC. Plaintiff v. MOBILFLEX INC., 2003 FCT 395

Date: 20030402 Docket: T-1761-89 Citation: 2003 FCT 395 Montréal, Quebec, April 2, 2003 Present: Mr. Richard Morneau, Prothonotary BETWEEN: DYNAFLAIR CORPORATION CANADA INC. Plaintiff and MOBILFLEX INC. and PRODUITS D'ARCHITECTURE DE QUÉBEC 1979 INC.

Defendants REASONS FOR ORDER AND ORDER [ 1 ] This is a motion by the defendant Mobilflex Inc. (the defendant) under Rule 75 of the Federal Court Rules, 1998 (the rules) to amend its amended statement of defence to include a counterclaim seeking a declaration of invalidity of the disputed patent. [ 2 ] It should be noted that this motion to amend was raised for the first time at the pre-trial conference that was held recently in this matter, which now dates back fourteen years. [ 3 ] The amendment that is sought, besides the fact that it is late and this lateness is completely unjustified, introduces a new cause of action based on facts that have to be different from and cover more than those pleaded in the current statement of defence. [ 4 ] The present situation is therefore different from the one anticipated by Rule 201 and is also different from the dynamics that were present in Robert Michaud and Adhésitech Inc. v.

Soprema Inc. , 2001 FCT 1383 , in which the Court held that the question of invalidity was already raised in the existing counterclaim in the case. Here, I do not think the defendant can argue that paragraphs 17 and 18 of its present statement of defence raise an issue as to invalidity. [ 5 ] If it took fourteen years for the parties to perfect an action in patent infringement, it can be expected that an addition as fundamental as an impeachment attack will entail new arguments which, if the past is any gauge of the future, could take many months, if not years, to wind up.

For example, judging from the plaintiff's reaction to the proposed amendment, it might, prima facie and without deciding otherwise, validly move for particulars and bring a motion to strike out some of the allegations in support of the amendment. No doubt the examinations for discovery on this impeachment proceeding would also be substantial. [ 6 ] Accordingly, and although I am aware of the liberal approach expressed in Canderel Ltd. v. Canada , 1993 CanLII 2990 (FCA) , [1994] 1 F.C. 3 (C.A.) and Visx Inc. v. Nidek Co. , [1998] F.C.J.

No. 1766 , I do not think it is fair or in the interests of justice in this case that the amendment sought by the defendant should be allowed in the context of the present action. The significant delay in bringing an end to the action if the amendment were allowed in this case would, in my opinion as the case manager, result in irreparable hardship in terms of costs and would be contrary to the spirit of Rule 3. [ 7 ] This motion of the defendant is therefore dismissed with costs. "Richard Morneau" Prothonotary Certified true translation Suzanne Gauthier, C. Tr., LL.L. FEDERAL COURT OF CANADA TRIAL DIVISION

Date: 20030402 Docket: T-1761-89 Between: DYNAFLAIR CORPORATION CANADA INC. Plaintiff and MOBILFLEX INC. and PRODUITS D'ARCHITECTURE DE QUÉBEC 1979 INC. Defendants REASONS FOR ORDER AND ORDER FEDERAL COURT OF CANADA TRIAL DIVISION SOLICITORS OF RECORD DOCKET : T-1761-89 STYLE : DYNAFLAIR CORPORATION CANADA INC. Plaintiff and MOBILFLEX INC. and PRODUITS D'ARCHITECTURE DE QUÉBEC 1979 INC. Defendants PLACE OF HEARING : Montréal, Quebec DATE OF HEARING : March 31, 2003 REASONS FOR ORDER OF MR.

RICHARD MORNEAU, PROTHONOTARY DATED : April 2, 2003 APPEARANCES : Judith Robinson for the plaintiff François Vallières for the defendants SOLICITORS OF RECORD : Ogilvy Renault for the plaintiff Montréal, Quebec Heenan Blaikie Aubut for the defendants Québec, Quebec