PRACTICE |
Res Judicata |
Benisti Import-Export Inc. v. Modes TXT Carbon Inc.
T-1517-01
2002 FCT 810, Rouleau J.
22/4/02
11 pp.
Motion to strike out paragraphs of defence to counterclaim on ground of res judicata--Action claiming infringement of industrial design--In amended defence to counterclaim, defendant asserting Trade-marks Act, s. 7(a) in conjunction with named industrial design--Prothonotary previously dismissing plaintiff's motion to strike those paragraphs of defence and counterclaim on basis s. 7(a) unconstitutional as relates to industrial designs and Court not having jurisdiction to entertain application--Plaintiff again raising issue of lack of Court's jurisdiction to hear arguments on basis of s. 7(a) in relation to industrial design in defence to counterclaim-- Motion allowed--Criteria for issue estoppel, as set out in Angle v. M.N.R., [1975] 2 S.C.R. 248, applied--(1) Same parties--(2) Paragraphs of defence to counterclaim raising issue identical to one decided by Prothonotary: lack of jurisdiction of Federal Court under s. 7(a) in relation to industrial design--(3) Kealey v. Canada (1991), 139 N.R. 189 (F.C.A.) not standing for proposition asserted by plaintiffs i.e. that when motion to strike pleadings dismissed, decision interlocutory judgment since substantive rights claimed would remain to be determined in proceeding--Instead Kealy holding determination of whether order final or interlocutory depending on legal effect thereof; final if determined in whole or part any substantive right asserted by any of parties, interlocutory if not--May argue Prothonotary's decision interlocutory since not determining any substantive rights-- But issue estoppel may arise from decision which is interlocutory, but becomes final and binding upon parties in absence of appeal--Plaintiff should have appealed Prothonotary's decision within ten days thereof--As too late now to appeal, Prothonotary's decision finally settled issue of Federal Court's jurisdiction with respect to s. 7(a) in relation to industrial designs--Plaintiff seeking to indirectly re-litigate issue already adjudicated--Trade-marks Act, R.S.C., 1985, T-13, s. 7(a).