Avant Inc. et al. v. Ontario, (1986) 1 F.T.R. 270 (TD)

• Judge: Collier, J.
• Court: Federal Court (Canada)
• Case Date: November 04, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1986), 1 F.T.R. 270 (TD)

Avant Inc. v. Ont. (1986), 1 F.T.R. 270 (TD)

MLB headnote and full text

Avant Incorporated, National Business Systems Inc. and National Business Systems Inc. v. Her Majesty The Queen in Right of Ontario

(T-2019-85)

Indexed As: Avant Inc. et al. v. Ontario

Federal Court of Canada

Trial Division

Collier, J.

February 6, 1986.

Summary:

The plaintiffs (a patent holder and two licensees) commenced an action in the Federal Court of Canada, Trial Division, against the Province of Ontario respecting alleged patent infringements. Ontario applied to strike out the action on the ground that the Trial Division had no jurisdiction. The Federal Court of Canada, Trial Division, allowed Ontario's motion to strike.

Courts - Topic 4029

Federal Court of Canada - Jurisdiction - Trial Division - Patents of invention - Plaintiff v. Ontario Provincial Crown - The Federal Court of Canada, Trial Division, held that it did not have jurisdiction to hear a tort action for patent infringement initiated by a patent holder and two licensees against the Ontario Provincial Crown pursuant to s. 5 of the Proceedings Against The Crown Act (Ont.).

Practice - Topic 2241

Pleadings - Striking out - Grounds - Lack of jurisdiction - Federal Court of Canada, Trial Division - The Proceedings Against The Crown Act (Ont.), s. 5, permitted actions in tort to be brought against the Province of Ontario - A patent holder and two licensees commenced a tort action for patent infringement against Ontario in the Federal Court of Canada, Trial Division - Ontario applied to strike out the action, alleging a lack of jurisdiction - The Trial Division allowed the application to strike and held that the liability to suit created by the Proceedings Against The Crown Act was confined to the courts of Ontario.

Cases Noticed:

Union Oil Co. of Canada Ltd. v. Government of Canada and Province of British Columbia, [1974] 2 F.C. 452 (F.C.T.D.), aff'd 72 D.L.R.(3d) 81 (F.C.A.), aff'd 16 N.R. 425; 72 D.L.R.(3d) 82; refd to. [para. 9].

Statutes Noticed:

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 20 [para. 5].

Patent Act, R.S.C. 1970, c. P-4, sect. 56 [para. 5]; sect. 57 [para. 8].

Proceedings Against the Crown Act, R.S.O 1980, c. 393, sect. 5 [para. 7].

Authors and Works Noticed:

Hogg, Constitutional Law of Canada (2nd Ed., 1985), pp. 221-223, 227240 [para. 11].

Counsel:

Appearances: J. Macera, for the plaintiffs;

J. Polika and D. Duke, for the defendant.

Solicitors of Record:

Macera & Jarzyna, Ottawa, Ontario, for the plaintiffs;

Archie Campbell, Deputy Attorney-General of Ontario, Toronto, Ontario, for the defendant.

This application was heard in Toronto, Ontario, on November 4, 1985, before Collier, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on February 6, 1986: