Milliken Co. v. Interface Flooring Systems ( Canada ) Inc.
T-3016-92
Tremblay-Lamer J.
2/12/96
13 pp.
Copyright-Application for order dismissing defendant's counterclaim, by way of application for summary judgment, on basis not commenced before expiration of three years immediately following alleged infringement date (Act, s. 41)-Application allowed-In main action, plaintiffs allege defendant Interface Canada infringed copyright rights in "Mangrove Design" in supplying and installing carpet tiles of certain design at Calgary International Airport, seeking injunctive relief, damages and relief under Act, s. 38-Defendant's counterclaim relating to supply and installation of carpet tiles at Gulf Canada Square in Calgary-Interface Canada's claim for infringement of copyright in "Interface Design", seeking injunctive relief, damages and s. 38 relief-General principles pertaining to summary judgment motions summarized in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.)-Onus on party moving for summary judgment to establish other party's claim, statement of defence or counterclaim disclosing no genuine issue to be tried-Defendant right in asserting s. 41 limitation period having no application with respect to injunctive relief: in claims for injunction or other equitable relief, statutes limiting time during which actions may be brought should generally be considered inapplicable-However, s. 41 limitation period still preventing plaintiff from claiming noninjunctive relief if more than three years have elapsed since alleged infringement date-Defendant's counterclaim for injunctive relief disclosing genuine issue for trial-However, defendant's claim for non-injunctive relief statute barred pursuant to Act, s. 41-On evidence, defendant has failed to establish existence of promissory estoppel or waiver-No agreement to waive any limitation period-Furthermore, no obligation upon person relying on statutory limitation period to advise other party of its strategy in relation to other party's claim-Copyright Act, R.S.C., 1985, c. C-42, s. 41 (as am. by R.S.C., 1985 (4th Supp.), c. 10, s. 9).