Oh Yes Toronto Inc. v. Lorimer
T-1933-93
Giles A.S.P.
22/10/93
3 pp.
Motion for extension of time to serve third party notice -- Plaintiff alleging ownership of certain designs assigned to it by authors thereof -- Alleging defendant manufacturing and distributing clothing bearing those designs or substantial reproductions thereof -- Defendant alleging designs belong to her and plaintiff infringing her copyright -- Document styled "third party notice" addressed to authors named as assignors in statement of claim alleging infringement against authors -- Relief claimed not in nature of indemnity -- Defendant not claiming contribution or relief over -- Motion dismissed -- As nothing in third party notice indicating defendant's claim against authors contingent upon defendant being found liable to plaintiff, third party proceedings under R. 1726 not authorized -- Motion supported by affidavit of lawyer presenting motion -- If best person to present evidence, lawyer's affidavit would be accepted, but cannot then present motion -- Reference to cases cited at pp. 341, 342 in Federal Court Practice 1994 (Toronto: Carswell, 1993) by Sgayias, Kinnear, Rennie and Saunders and to two cases reported in [1993] 12 O.R. (3d), part 2 -- Affidavit struck as improper as there might be cross-examination on it -- Federal Court Rules, C.R.C., c. 663, RR. 1719, 1726.