PRACTICE |
Parties |
Standing |
Positive Attitude Safety System Inc. v. Albian Sands Energy Inc.
T-1052-01
2004 FC 1022, Noël J.
23/7/04
43 pp.
Motion by defendants for summary judgment dismissing claims for passing off, copyright infringement under Federal Court Rules, 1998, rr. 213-219--In two recent decisions (MacNeil Estate v. Canada (Department of Indian and Northern Affairs), [2004] 3 F.C.R. 3 and Trojan Technologies, Inc. v. Suntec Environmental Inc. (2004), 239 D.L.R. (4th) 536), Federal Court of Appeal clarified motion judge's role when dealing with summary judgment--If credibility at stake, matter to be referred to trial judge who would be in better position to make final determination--But Federal Court of Appeal concerned motion judges would not know if they had all evidence or "sufficient evidence" in order to conclude, make final determination once finding on whether issue genuine as no obligation for responding party on summary judgment to present sufficient evidence to permit final determination--In Suntec Environmental Inc., Pelletier J.A. noted ambiguity created by r. 216(3) once conclusion on genuine issue made, thus creating possibility for matter not to proceed to trial or rendering of decision if facts permitted, based solely on affidavit evidence--Case law on summary judgment reviewed--Summary judgment motion should be granted in clear cases where all facts, law known, presented by parties--Motions judge must have available all necessary components to render qualitative judgment--Unfair to ask judge to render justice without first having complete picture of all relevant facts, law--Legislation, case law on passing off, infringement reviewed--As to passing off, plaintiffs claiming rights to two unregistered trade-marks; defendants admit using trade-marks for short period of time--Motion judge's primary role not to resolve issues of fact, but to determine whether genuine issue for trial exists--Genuine issue arising from prohibition contained in Trade-marks Act, s. 7(b)--Also, as Court not having benefit of all necessary factual evidence, legal arguments to properly respond to genuine issue, trial judge in better position to decide--As to copyright infringement, evidence clearly demonstrating, subject to determinations regarding licence agreements, Court's jurisdiction, defendants did infringe "PASS" System copyright in fall of 1999 by reproducing, distributing in prejudicial way, and by exhibiting disputed material in public--Matter for trial judge to decide, as is determination of whether defendants' ASESS System substantial copy of plaintiffs' PASS System-- Motion granted in part--Federal Court Rules, 1998, SOR/98-106, rr. 213, 214, 215, 216, 217, 218, 219--Trade-marks Act, R.S.C., 1985, c. T-13, s. 7.