A-451-78
De Cloet Bros. Ltd. and Gabriel DeCloet (Appel-
lants) (Defendants)
v.
Joe Balinte and Michael Verhaeghe (Respond-
ents) (Plaintiffs)
Court of Appeal, Heald and Ryan JJ. and Kerr
D.J.—Ottawa, February 6 and 8, 1980.
Practice — Motion to strike pleadings — Appeal from
refusal of Trial Judge to strike — Refusal based on s. 7(e) of
Trade Marks Act not declared ultra vires absolutely — Power
to strike for no cause of action exercised only in obvious cases
— Appeal dismissed — Trade Marks Act, R.S.C. 1970, c.
T-10, s. 7(e).
MacDonald v. Vapor Canada Ltd. [1977] 2 S.C.R. 134,
applied. Page v. Churchill Falls (Labrador) Corp. Ltd.
[1972] F.C. 1141, followed. R. v. Wilfrid Nadeau Inc.
[1973] F.C. 1045, followed.
APPEAL.
COUNSEL:
David Watson, Q.C. for appellants (defend-
ants).
No one appearing for respondent (plaintiff)
Joe Balinte.
Gordon S. Clarke for respondent (plaintiff)
Michael Verhaeghe.
SOLICITORS:
Gowling & Henderson, Ottawa, for appellants
(defendants).
Burke-Robertson, Chadwick & Ritchie,
Ottawa, for respondent (plaintiff) Joe Balinte.
McCarthy & McCarthy, Toronto, for
respondent (plaintiff) Michael Verhaeghe.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal from a judgment of
the Trial Division* refusing to strike out para
graphs 17 to 31 inclusive of the statement of claim
and subparagraphs (f), (g), (h) and (i) of the
respondents' prayer for relief in that statement of
claim. The reasons given by the learned Chamber's
Judge for refusing to strike out the above portions
of the pleadings read as follows:
* [Not circulated—Ed.]
... the decision in MacDonald v. Vapor Canada Ltd. [1977] 2
S.C.R. 134 has not declared subsection 7(e) of the Trade
Marks Act ultra vires absolutely, but on the facts of that case
which did "not bring into issue any question of patent, copy
right or trade mark infringement or any tortious dealing with
such matters or with trade names." (Laskin C.J. at pp. 172 and
173.)
There is considerable authority for the principle
that the power to strike out a claim or portions
thereof as disclosing no cause of action should be
exercised only in plain and obvious cases'. In my
view, this is not such a case. The opinion expressed
by the learned Trial Judge that the MacDonald v.
Vapor Canada Ltd. case supra has not declared
subsection 7(e) of the Trade Marks Act, R.S.C.
1970, c. T-10, ultra vires absolutely, is, I believe, a
fairly arguable position to take and a difficult issue
such as this is not one which should be decided in
an exceptional procedure like an application to
strike 2.
I would accordingly dismiss the appeal with
costs.
* * *
RYAN J.: I agree.
* * *
KERR D.J.: I agree.
' See: Page v. Churchill Falls (Labrador) Corp. Ltd. [1972]
F.C. 114I—see particularly footnote no. 2 at p. 1147. See also:
The Queen v. Wilfrid Nadeau Inc. [1973] F.C. 1045—see
particularly footnote no. 9 at 1048.
2 Compare: Eli Lilly and Co. v. Marzone Chemicals Ltd.
[1977] 2 F.C. 104.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.