Burns Foods (1985) Ltd. et al. v. Maple Lodge Farms Ltd. et al., (1994) 75 F.T.R. 39 (TD)

• Judge: Cullen, J.
• Court: Federal Court (Canada)
• Case Date: January 24, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 75 F.T.R. 39 (TD)

Burns Foods Ltd. v. Maple Lodge Farms (1994), 75 F.T.R. 39 (TD)

MLB headnote and full text

Burns Foods (1985) Limited and 332592 Alberta Ltd. (plaintiffs) v. Maple Lodge Farms Ltd. and 112345 Canada Inc. (defendants)

(T-1272-93)

Indexed As: Burns Foods (1985) Ltd. et al. v. Maple Lodge Farms Ltd. et al.

Federal Court of Canada

Trial Division

Cullen, J.

February 10, 1994.

Summary:

Burns Foods et al. sued Maple Lodge Farms et al. for patent infringement. Maple Lodge Farms sought to have the action stayed until Burns added another party as plaintiff, but this motion was dismissed. Maple Lodge Farms served a notice of motion appealing the decision but did not set out the grounds as required under rule 319. Burns Foods applied to dismiss Maple Lodge Farms motion.

The Federal Court of Canada, Trial Division, allowed the Burns Foods motion and dismissed Maple Lodge Farms' motion.

Practice - Topic 378

Parties - Joinder of parties - Joinder of plaintiffs - When required - Burns Foods sued Maple Lodge Farms for patent infringement - Maple Lodge Farms applied for an order staying the proceedings until Burns Foods joined another party as a plaintiff - The motion was dismissed and Maple Lodge Farms appealed - The Federal Court of Canada, Trial Division, dismissed the appeal and held that as the other party was not a patentee to the patent in suit it was not necessary to add it - See paragraphs 2 to 20 and 25(1).

Practice - Topic 3130

Applications and motions - Motions - Form and content - Burns Foods sued Maple Lodge Farms for patent infringement - Maple Lodge Farms applied to have the action stayed until Burns Foods added another party as a plaintiff - When this was denied Maple Lodge Farms appealed by notice of motion but failed to set out the grounds as required under rule 319 - Burns Foods applied to have Maple Lodge Farms' motion dismissed - The Federal Court of Canada, Trial Division, allowed Burns Foods' motion and dismissed the Maple Lodge Farms' motion for non-compliance with rule 319 - See paragraphs 21 to 28.

Cases Noticed:

Mayborn Products Ltd. v. Registrar of Trademarks, [1984] 1 F.C. 107 (T.D.), refd to. [para. 16].

Fibergrid Inc. v. Precisioneering Ltd. (1991), 42 F.T.R. 114; 35 C.P.R.(3d) 221 (T.D.), dist. [para. 25].

Centennial Packers Ltd. v. Canada Packers Inc. and Registrar of Trademarks (1986), 9 F.T.R. 232; 13 C.P.R.(3d) 187 (T.D.), dist. [para. 25].

Statutes Noticed:

Federal Court Rules, rule 302, rule 319 [para. 1]; rule 319(c) [para. 12]; rule 336(5) [para. 1]; rule 1715, rule 1716 [para. 9].

Interpretation Act, R.S.C. 1985, c. I-21, generally [para. 8].

Patent Act, R.S.C. 1985, c. P-4, sect. 44 [para. 4]; sect. 45 [para. 5]; sect. 55(1)(a) [para. 6]; sect. 55 [para. 13]; sect. 55(2) [para. 7]; sect. 59 [para. 14].

Patent Act, R.S.C. 1985 (3rd Supp.), c. 33, sect. 21 [para. 6].

Counsel:

George E. Fisk, for the plaintiff;

Gordon S. Clarke, for the defendant, Maple Lodge Farms Ltd.

Solicitors of Record:

Bennett, Jones & Verchere, Ottawa, Ontario, for the plaintiff;

Gordon S. Clarke, Toronto, Ontario, for the defendant, Maple Lodge Farms Ltd.

These applications were heard on January 24, 1994, in Toronto, Ontario, before Cullen, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on February 10, 1994.