Ceminchuk v. IBM Canada Ltd.
T-1530-95
Hargrave P.
21/8/95
7 pp.
Statement of claim referring to restraint of trade in context of Competition Act, s. 50, tied selling under s. 77-Court assuming claim for damages reference to s. 36 allowing civil recovery of damages for person suffering loss or damage as result of conduct contrary to any provision in Part VI-S. 50 contained in Part VI-Pleadings vague, containing few facts, seeking large damage awards-Reliance on s. 77 as civil cause of action under which to claim damages cannot succeed-As not contained in Part VI, not giving plaintiff benefit from purely statutory right of civil recovery in s. 36-Abuse of dominant position in Competition Act merely reviewable practice under Part VIII and any proceedings relating to practice conducted before civil administrative tribunal; no improper conduct until such time as Competition Tribunal so finds: Procter & Gamble Co. v. Kimberly-Clark of Canada Ltd. (1991), 40 C.P.R. (3d) 1 (F.C.T.D.)-No indication in statement of claim of any proceedings before Competition Tribunal-Tied selling not illegal in absence of legislation to contrary: Harbord Insurance Services Ltd. v. Insurance Corp. of British Columbia (1993), 9 B.L.R. (2d) 81 (B.C.S.C.)-S. 75(1), opening part of Part VIII dealing with restrictive trade practices and refusal to deal, not conferring cause of action enforceable in court of common law or equity, but assigned exclusively to Competition Tribunal: Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc. (1995), 23 O.R. (3d) 766 (Div. Ct.)-This action commenced after previous statement of claim struck out-Bare assertions, speculations, conclusions in balance of statement of claim not constituting cause of action-Statement of claim not disclosing reasonable cause of action-Vexatious, embarrassing as not showing sufficient facts for defendant to answer with defence-Abuse of process as making serious allegations, but not pleading any facts-Amendment of statement of claim to make connection between bare assertion of restraint of trade and substantial damages claimed not possible-Action struck without leave to amend-Costs not awarded in earlier application to strike-While lay litigant not able to hide behind lack of knowledge of Rules, ought not necessarily to be penalized, even for fairly substantial error in pleadings in first instance-Despite ample prior cautions set out in earlier reasons plaintiff filing similar statement of claim-Defendant put to considerable expense to strike out proceeding without cause of action, embarrassing, vexatious and abusive-Defendant awarded costs, disbursements-Plaintiff not permitted to commence further actions in this Court until costs, disbursements paid-Competition Act, R.S.C., 1985, c. C-34, ss. 36 (as am. by R.S.C., 1985 (4th Supp.), c. 1, s. 11), 50, 75 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 45), 77 (as am. idem).