Date: 19981214
Docket: T-992-92
BETWEEN:
ALMECON INDUSTRIES LIMITED
Plaintiff
- and -
ANCHORTEK LTD., EXPLOSIVES LIMITED,
ACE EXPLOSIVES ETI LTD. and
WESTERN EXPLOSIVES LTD.
Defendants
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] The motion before me seeks leave for the plaintiff to amend the statement of claim. By its amendment the plaintiff seeks to allege facts supporting claims of inducement, procurement and joint-tortfeasance. Originally, the plaintiffs had sought to allege conspiracy but withdrew that amendment. Paragraph 14 alleges:
| In determining the design of the ENERGY PLUG Anchortek acted in concert with Ace, Explosives and Western. Each of Ace, Explosives and Western had input into the design of the ENERGY PLUG and into the design changes made to the ENERGY PLUG. Each of the Defendants knew of the existence of the Patent at the time that the ENERGY PLUG was designed and acted with full knowledge of the rights which the Plaintiff had under the Patent. Notwithstanding their knowledge of the rights of the Plaintiff the Defendants acted together to design, manufacture and sell the ENERGY PLUG in Canada. |
[2] In Paragraph 16 it was alleged:
| By reason of the activities described above, the Defendants Ace, Explosives and Western, with knowledge of the Patent, have induced and procured the Defendant Anchortek, to make for them the ENERGY PLUG and therefore to infringe claims 1 and 5 of the Patent. |
[3] And paragraph 17 read:
| By reason of the activities described above, the Defendant Anchortek, with knowledge of the Patent, is inducing and procuring others to infringe claims 1 and 5 of the Patent. |
Paragraph 18 reads:
| By reason of the activities described above, the Defendants are joint tort-feasors, acted in concert to infringe claims 1 and 5 of the Patent. |
[4] And in the prayer for relief, subparagraph (b)(ii) the plaintiff seeks to add a claim for damages for inducing the making, the using, the distributing, vending, offering for sale, or selling of the Energy Plug topping and tamping plug in Canada.
[5] The defendants claim that the plaintiff had admitted it has no evidence to support the claims of inducement by the distributors of Anchortek. I conclude from the admissions in the discovery of Paavo Auoma that the only evidence the plaintiff has that the distributors induced Anchortek, their supplier, to infringe was the evidence of Mr. Cherniak. The transcripts of the discovery of Mr. Cherniak produced to me indicate that various proposed plugs were produced to Mr. Cherniak for inspection and comment. There is no evidence that Mr. Cherniak encouraged Anchortek to produce any plug for use by any of the defendants, or in any way contributed suggestions to Anchortek with regard to the design of the plug. There is, thus, no evidence of any inducement of Anchortek by its distributors. I note also there is no evidence or allegation of any monopoly or near-monopoly situation by which the distributors might be thought to have induced Anchortek to produce a plug, allegations of inducement by the distributors could be struck from the amended claim, and will therefore not be allowed to be included in an amending statement of claim. Paragraph 14 would therefore not be permitted and paragraph 16 likewise.
[6] In paragraph 17 it is alleged that by reason of the activities described above Anchortek, with knowledge of the patent, is inducing and procuring others to infringe. There are no facts as to which others are being induced by Anchortek. The amended claim as presented to me indicated that the distributors were alleged to be inducing Anchortek, therefore I could not conclude that Anchortek was inducing the distributors at the same time. Paragraph 17 should not be allowed because no facts to support the allegation are included in the statement of claim.
[7] To support paragraph 18 there would have to be some allegations of co-operation between the defendants. Such co-operation was alleged in paragraph 14 which I have decided not to permit because there is no evidence to support those allegations. Paragraph 18 also should not be permitted because all the allegations supporting a claim of inducing have not been allowed.
[8] The claim for an injunction restraining inducing should also be denied.
[9] In conclusion, the motion for leave to amend the statement of claim is denied.
"Peter A.K. Giles"
A.S.P.
TORONTO, ONTARIO
December 14, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-992-92
| STYLE OF CAUSE: ALMECON INDUSTRIES LIMITED |
- and -
| ANCHORTEK LTD., EXPLOSIVES LIMITED, ACE EXPLOSIVES ETI LTD. and WESTERN EXPLOSIVES LTD. |
DATE OF HEARING: TUESDAY, DECEMBER 8, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: MONDAY, DECEMBER 14, 1998
APPEARANCES: Mr. Henry Lue
For the Plaintiff
Ms. Shonagh L. McVean
For the Defendants
SOLICITORS OF RECORD: Dimock Stratton Clarizio
| Barristers & Solicitors |
| Suite 3202, Box 102 |
| 20 Queen Street West |
| Toronto, Ontario |
| M5H 3R3 |
For the Plaintiff
Morris Rosenberg
Deputy Attorney General
of Canada
For the Defendants
FEDERAL COURT OF CANADA
Date: 19981214
Docket: T-992-92
Between:
| ALMECON INDUSTRIES LIMITED |
Plaintiff
- and -
| ANCHORTEK LTD., EXPLOSIVES LIMITED, ACE EXPLOSIVES ETI LTD. and WESTERN EXPLOSIVES LTD. |
Defendants
REASONS FOR ORDER
| AND ORDER |