PRACTICE |
Judgments and Orders |
Reversal or Variation |
Minnesota Mining and Manufacturing Co. v. Chemque, Inc.
T-748-98
2001 FCT 216, Heneghan J.
21/3/01
18 pp.
Motion under r. 399(2) to set aside order of Lafrenière P. permitting defendant to further amend statement of defence, counterclaim--Plaintiff also seeking order under r. 221(1) striking all amendments in defendant's amended amended statement of defence, counterclaim dated June 12, 2000, without leave to amend--Plaintiff, defendant engaged in litigation concerning Canadian Patent No. 1,312,158 entitled "Encapsulant Compositions for Use in Signal Transmission Devices"--Plaintiff alleging defendant infringed patent--Present action parallels proceedings commenced in United States District Court for Western District of Texas, involving alleged infringement of companion United States patent--Protective order issued in American proceedings, restricting production of certain documents--Test for applying r. 399(2) established by F.C.A. in Saywack v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 189--Plaintiff not entitled to relief under r. 399(2)--Court not satisfied plaintiff not put on notice as to nature of amendment sought to be made to defence, nature of documents sought to be added to affidavit of documents--Sufficient evidence defendant proposing to amend pleadings, to introduce issues, documents related to American litigation--Protective order made by Texas Court applicable only to matters at issue in litigation proceeding in that Court--No evidence outcome of American litigation determinative of present case--Court can deal only with matters falling within jurisdiction--No authority to enforce interlocutory order of foreign court nor to impose sanctions for apparent breach of such order--Appropriate remedy to let amended amended defence stand--Request to remove Sim, Hughes, Ashton & McKay as solicitors of record denied--Motion dismissed--Federal Court Rules, 1998, SOR/98-106, rr. 221, 399.