Date: 20001004
Docket: T-385-00
MONTREAL, QUEBEC, THIS 4th DAY OF OCTOBER 2000
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
Between:
CABOT SAFETY INTERMEDIATE CORPORATION
AEARO COMPANY
and
AEARO CANADA LIMITED
Plaintiffs
AND
MINNESOTA MINING AND MANUFACTURING COMPANY
and
3M CANADA COMPANY
Defendants
Motion from Plaintiffs for:
| A. An Order declaring that the Defendants have not complied with the Order of Prothonotary Richard Morneau dated September 15, 2000; |
| B. An Order striking out subparagraphs 34.8 and 34.13 under paragraph 9 of the Third Amended Statement of Defence as well as paragraph 11B thereof; |
| C. An Order directing that the Defendants, within fifteen (15) days, serve and file an amendment to their Third Amended Statement of Defence removing paragraph 11B and making the following amendments, in paragraph 9: the text appearing after each of "34.8" and "34.13" shall be removed and replaced by "is admitted"; |
| D. An Order extending the time allowed for the Plaintiffs to serve and file their "Reply to the Statement of Defence" to thirty (30) days after the Defendants comply with the Order to be rendered herein; |
| E. The costs of this motion on a solicitor-and-client basis payable forthwith; and |
| F. Such other relief as this Court may deem just. |
(Rules 8, 221 and 400 of the Federal Court Rules, 1998)
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This motion by the Plaintiffs deals again with whether or not the Defendants are in compliance with past Orders of this Court. More specifically, it deals with whether or not the Defendants' Third Amended Statement of Defence (the Defence) complies with the Order of this Court dated September 15, 2000 and, to a large extent, with the Order of the Court dated June 27, 2000.
[2] For the purpose of dealing with subparagraphs 34.8 and 34.13 under paragraph 9 of the Defence, I adopt entirely the reasoning found in the written representations forming part of the Motion Record filed by the Plaintiffs on September 27, 2000. Hence, I am unable to agree that the Defendants are in compliance with the Orders of this Court dated June 27, 2000 and September 15, 2000. This motion by the Plaintiffs shall be granted as follows.
[3] Subparagraphs 34.8 and 34.13 under paragraph 9 of the Defence are struck out from the Defence and from now on subparagraphs 34.8 and 34.13 of the Plaintiffs' Statement of Claim are deemed to be admitted.
[4] As to paragraph 11B of the Defence, the following underlined wording is struck out from the Defence:
| 11B. The earplugs of the Defendant 3M CANADA have three flanges, the two lower of which are conical in shape with slightly rounded outer tips and a concave upper curvature at the point where they meet the central stalk. As such they are not "generally hemispherical" as set out in the patent as particularized in paragraph 10 above. Since not all flanges of the Defendant 3M CANADA's earplugs are equidistant from the geometric centre, to construe "generally hemispherical" as defined in the patent so as to include the structure of the Defendant 3M CANADA's earplugs would require a reading of that portion quoted at paragraph 10 such as to render it vague and ambiguous, thus render the patent invalid. Alternatively, if the meaning is such as set out in paragraph 10 above, the Defendant 3M CANADA's earplugs are not within such meaning, hence do not infringe the patent. |
[5] The time allowed for the Plaintiffs to serve and file their Reply to the Defence is extended to thirty (30) days from the date of this Order.
[6] As to costs, it is worth remembering that the subject matter of this motion was dealt with in two previous motions and two previous Orders of the Court. The Defendants' repeated failure to comply with Orders of this Court has brought the Plaintiffs to incur unnecessary expenses. Consequently, I am satisfied that the Defendants shall pay forthwith the costs of the motion at bar at the maximum of Column V of Tariff B and I do hereby order so.
[7] At the end of the hearing, counsel for the Defendants asked verbally that the time to appeal my Order of September 15, 2000 be extended. I refused to grant that verbal request and directed counsel to proceed by way of a formal motion under the Federal Court Rules, 1998.
Richard Morneau
Prothonotary
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-385-00
CABOT SAFETY INTERMEDIATE CORPORATION
AEARO COMPANY and
AEARO CANADA LIMITED
Plaintiffs
AND
MINNESOTA MINING AND MANUFACTURING COMPANY and
3M CANADA COMPANY
Defendants
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:October 2, 2000
REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:October 4, 2000
APPEARANCES:
| Mr. Brian Daley Mr. D. Elie (Articling Student) |
for the Plaintiffs |
| Mr. R. Hughes Ms. Elizabeth Valentina |
for the Defendants |
SOLICITORS OF RECORD:
| Ogilvy Renault Montreal, Quebec |
for the Plaintiffs |
| Sim, Hughes, Ashton & McKay Toronto, Ontario |
for the Defendants |