Milliken & Co. v. Interface Flooring Systems ( Canada ) Inc.
T-3016-92
Nadon J.
14/12/93
7 pp.
Appeal from order striking amendments to statement of claim -- Action for infringement of copyright in artistic work known as "Mangrove", originally published as textile design pattern for carpet tiles -- Action dismissed for failing to disclose reasonable cause of action, but that order set aside -- On October 15, plaintiffs filing amended statement of claim pursuant to R. 421, adding claim for industrial design infringement -- R. 421 permitting amendment of pleadings prior to any other party pleading thereto or at any time with written consent of opposite party -- On same day defendant filing notice of appeal of order setting aside order striking out statement of claim -- Amendments struck on basis R. 1104 applicable and plaintiffs could not amend statement of claim pursuant to R. 421 -- R. 1104 providing during pendency of appeal, Court may make amendments necessary to determine real question in controversy -- Defendant relying on Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441 wherein Wilson J. stated as application for amendment to statement of claim made during pendency of appeal, right under R. 421 expired and only recourse to proceed under R. 1104 -- Appeal allowed -- R. 1104 not applicable to amendments herein -- Principle stated by Wilson J. must be interpreted so as to apply only in so far as proposed amendment pertaining to issue under appeal -- R. 1104 not precluding resort to R. 421 during pendency of appeal -- Permitting Court of Appeal to permit amendments necessary for determination of appeal or of real controversy between parties -- When amendments pertaining to matter under consideration in appeal, must be made in accordance with R. 1104 -- Amendments herein relating to alleged infringement of industrial design registration, issue bearing no relevance to subject-matter of defendant's appeal -- Purpose of R. 1104 to give Court of Appeal control over aspects of pleadings likely to consider -- If Court of Appeal to effectively deal with issues on appeal, parties not able to amend aspects of pleadings dealing with these issues without leave of Court of Appeal -- Where amendments will not be considered by Court of Appeal, no reason to depart from general principles of RR. 420 to 430 -- Plaintiffs alleging Industrial Design Act not allowing them to assert design registration when filed original statement of claim, but as result of amendment, assigned registered industrial design opposable to defendant -- Not plain and obvious plaintiff's case cannot succeed -- Defendant arguing as amendments relating to industrial design registration not brought within 12 months of cause of action, plaintiffs' rights of action in regard thereto extinguished -- R. 419(1)(a) not proper vehicle to assert defence based on limitation: Kibale v. Canada (1990), 123 N.R. 153 (F.C.A.) -- Federal Court Rules, C.R.C., c. 663, RR. 419, 421, 1104 -- Industrial Design Act, R.S.C., 1985, c. I-9 (as am. by S.C. 1993, c. 15).