Levi Strauss & Co. v. L.A. Jazz Ltée
T-108-95
Tremblay-Lamer J.
24/4/95
5 pp.
Motion, pursuant to action for trade mark infringement, to strike certain paragraphs of statement of defence and counterclaim pursuant to R. 419(1)(a) -- R. 419(1)(a) test for striking pleading i.e. plain and obvious cases where Court satisfied "case beyond doubt", applying to both statement of claim and counterclaim -- Trade Marks Act, s. 7(e) wholly unconstitutional legislation pertaining to business practice of provincial jurisdiction -- Consequently, paragraphs going solely to applicability of Act, s. 7(e) must be struck -- Defendant submitting facts alleged in paragraphs at issue, relating to other actions started by plaintiff, indicating defendants encouraged to believe plaintiff would not take legal action against them; thus defendant contending paragraphs at issue constituting basis for defence of laches, acquiescence and delay as well as for claim action frivolous and vexatious -- Letters exchanged between parties and method of proceeding with action giving rise to arguable issue-Plaintiff's past litigious behaviour relevant only in cases where extraordinarily long delay in concluding case existing; thus, only those subparagraphs relating to recently commenced proceedings should be struck -- Motion allowed in part -- Federal Court Rules, C.R.C., c. 663, R. 419(1)(a) -- Trade-marks Act, R.S.C., 1985, c. T-13, s. 7(e).