Nidek Co. Ltd. v. Visx Inc.
A-526-94
Isaac C.J.
30/12/96
9 pp.
Appeals from three interlocutory orders relating to statement of defence and counterclaim in action for infringement of patents relating to excimer laser devices used to reshape cornea by ablating cells on cornea surface-First order dismissing appeal from order striking out paragraphs of statement of defence-Second order dismissing appeal from refusal of leave to file third amended statement of defence, counterclaim alleging invalidity for lack of utility-Third order disallowing three paragraphs of third amended statement of defence, counterclaim-Appeals dismissed-Where, as here, appeal from discretionary order of Motions Judge in interlocutory matter, disposition most consistent with optimum use of judicial resources and optimum conservation of judicial time should focus not on merits of contentions before Motions Judge, but on question of whether Motions Judge exercised discretion judicially-On appeal, counsel should deal with merits only to extent required to demonstrate Motions Judge's discretion not exercised judicially-Appellants not demonstrating Motions Judge not exercising discretion judicially-Court will not interfere with discretion of Motions Judge in making interlocutory orders of this kind unless demonstrated to its satisfaction Motions Judge erred either in appreciation of pleadings or in law in making order, either by misapplying principle of law or by applying erroneous principle-If appellants not meeting this standard of review, Court cannot allow appeal even where, on merits of contentions, would have decided otherwise had it heard matter at first instance-In Algonquin Mercantile Corp. v. Dart Industries Canada Ltd. (1984), 5 C.I.P.R. 40 (F.C.A.) holding discretionary order should be overruled only if Motions Judge clearly wrong on facts, or proceeded on erroneous principle of law, or decision resulted in some injustice to appellant-Regardless of how standard of review expressed, appellants falling short-On appeal from second order, appellants filing affidavit to which exhibited technical articles in support of facts pleaded in new paragraphs alleging lack of utility, invalidity-Motions Judge affirming Senior Prothonotary's refusal to allow amendment on basis affidavit evidence provided insufficient-Pleadings should contain only material facts upon which parties rely-Where nature of amendments clear, no requirement to plead evidence by which facts to be proved-Amendment should not be allowed if would be capable of being struck out under R. 419 if already part of proposed pleadings-Court should not accept any evidence in support of application for leave to amend pleadings under R. 420, unless required to clarify nature of proposed amendments-Must assume facts pleaded in amendments true for purposes of considering whether or not to grant leave to amend-As nature of, reasons for amendments clear, affidavit evidence should not have been filed, Motions Judge erred in considering it-Even so, as Motions Judge expressly concluding even if facts pleaded in amendments true, amendments not revealing any reasonable defence, decision properly made in accordance with law-Federal Court Rules, C.R.C., c. 663, RR. 419, 420.