Date: 19990419
Docket: T-319-98
BETWEEN:
VOLKSWAGEN CANADA INC.
Plaintiff
- and -
ACCESS INTERNATIONAL AUTOMOTIVE LTD.
Defendant
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] By a motion before me the plaintiff sought to strike all references to section 32 of the Competition Act and the practices mentioned therein on the grounds that such practices can only be prosecuted on an information exhibited by the Attorney General as is set forth in the statute itself.
[2] The defendant responds that it should be allowed to allege practices as evidence of lack of "clean hands" in order to respond to the plaintiff's plea for an injunction.
[3] In the light of the reasoning of Mr. Justice Addy in Eli Lilly v. Marzone Chemicals Ltd. (1976) 29 C.P.R. (2d) 253, an infringement of the Combines Investigation Act could, in the proper circumstances, be a bar to equitable relief. However, to act as a bar the infringement must be proved. I note that the relief section 32 provides is not with respect to the use of a trademark (inter alia) to lessen, prevent, limit, etc. competition etc. which might be ascertainable by the Court, but rather the section deals with unduly limiting, restraining, injuring, preventing, lessening, etc. competition inter alia. Whether or not any of the acts results in an undue consequence is something that can only be determined on the information of the Attorney General. It is quite apparent and in fact intended that a trademark, or other monopoly right, should, to some extent, limit competition. It is the undueness to which section 32 addresses itself.
[4] I therefore find that section 32 cannot, until a court has found undue consequences, be used as a defence or counter-claim in an action respecting trademarks. The motion must therefore succeed and paragraphs 15, 16, and 17 of the Statement of Defence, being those paragraphs under the heading Contravention of the Competition Act, must be struck out, as must paragraphs 3 to 5 inclusive, and 7(a) of the Counter-Claim because those sections deal with an alleged contravention of the Competition Act.
ORDER
[5] Paragraphs 15 and 17 of the Statement of Defence, 3 to 5 inclusive, and section 7(a) of the Counter-claim are struck out without leave to amend.
[6] Costs to plaintiff in the cause.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
April 19, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-319-98
| STYLE OF CAUSE: VOLKSWAGEN CANADA INC. |
- and -
| ACCESS INTERNATIONAL AUTOMOTIVE LTD. |
DATE OF HEARING: MONDAY, JUNE 8, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: MONDAY, APRIL 19, 1999
APPEARANCES: Mr. L.E. Trent Horne
For the Plaintiff
Mr. David Haigh
Ms. Brenda Leeds
For the Defendant
SOLICITORS OF RECORD: Sim, Hughes, Ashton & MacKay
Barristers & Solicitors
6th Flr., 330 University Ave.,
Toronto, Ontario
M5G 1R7
For the Plaintiff
Burnet, Duckworth & Palmer
Barristers & Solicitors
1400-350 7th Ave. S-W.
Calgary, Alberta
T2P 3N9
For the Defendant
FEDERAL COURT OF CANADA
Date: 19990419
Docket: T-319-98
Between:
| VOLKSWAGEN CANADA INC. |
Plaintiff
- and -
| ACCESS INTERNATIONAL AUTOMOTIVE LTD. |
Defendant
REASONS FOR ORDER
| AND ORDER |