PRACTICE |
Pleadings |
Sunsolar Energy Technologies (S.E.T.) Inc. v. Flexible Solutions International, Inc.
T-1065-04
2004 FC 1205, Rouleau J.
1/9/04
8 pp.
Appeal from Prothonotary's dismissal of motion to strike named defendant, Daniel O'Brien, as party--Prothonotary holding as president of both corporate defendants, reasonable to conclude Mr. O'Brien could have been involved in deliberate, willful, knowing pursuit of course of conduct likely to constitute infringement, or course of conduct reflected in indifference to risk thereof, thus coming within scope of test for personal liability on part of officer, director--Defendants submitting neither statement of claim nor particularized statement of claim containing any allegations of actions directed at defendant Mr. O'Brien apart from him acting "under the authority and guidance of corporate defendants"; infringement actions alleged to have been done by corporate defendants--Appeal allowed--Federal Court Rules, 1998, r. 174 requiring pleading to contain concise statement of material facts on which party relying--R. 181 requiring pleading to contain particulars of every allegation when dealing with fraud, breach of trust--Neither statement of claim nor particularized statement of claim meeting these obligations--Leading principles, case law dealing with liability of corporate officers, directors generally derived from Mentmore Manufacturing Co., Ltd. et al. v. National Merchandise Manufacturing Co. Inc. et al. (1978), 40 C.P.R. (2d) 164 (F.C.A.)--To render director, officer of company responsible for tortious acts, must show acts expressly directed--Neither statement of claim nor particularized statement of claim providing any facts upon which defendant or Court could conclude "deliberate, willful and knowing pursuit of a course of conduct that was likely to constitute infringement or reflected any indifference to the risk of it" --Prothonotary applied wrong legal principle--Mr. O'Brien must be shown to be more involved in actions of corporate defendants--Actual actions of corporate officer must be pleaded--Bare assertion of conclusion neither allegation of material fact nor supporting cause of action against individual defendant--Could not reasonably conclude implicated to sufficient extent to support finding of deliberate acts on part of Mr. O'Brien--Federal Court Rules, 1998, SOR/98-106, rr. 174, 181.