Diamant Toys Ltd. et al. v. Jouets Bo-Jeux Toys Inc., (2006) 290 F.T.R. 94 (FC)

• Judge: Martineau, J.
• Court: Federal Court (Canada)
• Case Date: April 03, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 290 F.T.R. 94 (FC);2006 FC 457

Diamant Toys v. Jouets Bo-Jeux Toys (2006), 290 F.T.R. 94 (FC)

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Temp. Cite: [2006] F.T.R. TBEd. AP.033

Diamant Toys Ltd. and Soltron Realty Inc. (plaintiffs) v. Jouets Bo-Jeux Toys Inc. (defendant)

(T-1676-01; 2006 FC 457)

Indexed As: Diamant Toys Ltd. et al. v. Jouets Bo-Jeux Toys Inc.

Federal Court

Martineau, J.

April 7, 2006.

Summary:

The plaintiffs sued the defendant for copyright infringement. The plaintiffs moved for leave to file an amended statement of claim on the first day of trial.

The Federal Court allowed the motion.

Practice - Topic 2121

Pleadings - Amendment of pleadings - Statement of claim - Adding particulars or subsequent facts - The plaintiffs sued the defendant for copyright infringement - The plaintiffs moved for leave to file an amended statement of claim on the first day of trial, including, inter alia, an Amended Schedule A - Paragraph 1(a) of the amended statement of claim now indicated that the plaintiffs were "the owner of the copyrights in the original artistic works, a representative sample of which is listed in amended Schedule A hereto, consisting of the actual product packaging, the photographs and drawings reproduced on the packaging and/or included as part of the written instructions themselves included within the packaging and/or the actual toys themselves included within the packaging ..." - The defendant argued that it was taken by surprise by the last minute amendment and that by amending their Schedule A to qualify it as merely a "representative sample" of the works at issue, the plaintiffs were introducing new causes of action based on new, unknown works - The Federal Court allowed the motion - The proposed amendments did not raise new causes of action and they were necessary to facilitate the court's consideration of the merits of the action - Moreover, the defendant's allegations that it was taken by surprise were not supported by affidavit and were contradicted by the plaintiffs' evidence - Finally, the proposed amendments were only made to refocus and particularize specific aspects of the same cause of action which arose from the alleged infringement of the copyrighted works.

Cases Noticed:

Minister of National Revenue v. Canderel Ltd., [1994] 1 F.C. 3; 157 N.R. 380 (F.C.A.), refd to. [para. 2].

Scannar Industries Inc. et al. v. Minister of National Revenue (1993), 69 F.T.R. 310 (T.D.), affd. (1994), 172 N.R. 313 (F.C.A.), refd to. [para. 2].

Yeager v. Correctional Service of Canada et al. (2000), 189 F.T.R. 196 (T.D.), refd to. [para. 2].

Valentino Gennarini SRL v. Andromeda Navigation Inc. (2003), 232 F.T.R. 256; 2003 FCT 567, refd to. [para. 2].

Hoechst Marion Roussel Deutchland GmbH v. Adir et Cie et al. (2000), 190 F.T.R. 233 (T.D.), refd to. [para. 10].

Merck Frosst Canada Inc. et al. v. Canada (Minister of National Health and Welfare) et al. (1997), 138 F.T.R. 94; 76 C.P.R.(3d) 468 (T.D.), refd to. [para. 10].

Vandervell's Trusts (No. 2), Re; White v. Vandervell Trustees, [1974] 3 All E.R. 205 (C.A.), refd to. [para. 11].

Continental Bank Leasing Corp. v. Canada, [1993] 1 C.T.C. 2306 (Tax C.C.), refd to. [para. 12].

Merck & Co. et al. v. Apotex Inc., [2004] 2 F.C.R. 459; 315 N.R. 175; 2003 FCA 488, refd to. [para. 12].

Montana Indian Band v. Canada et al., [2002] F.T.R. Uned. 387; 2002 FCT 583, dist. [para. 17].

Counsel:

François Guay, for the plaintiffs;

Daniel A. Artola, for the defendant.

Solicitors of Record:

Smart & Biggar, Montreal, Quebec, for the plaintiffs;

Ogilvy Renault, Montreal, Quebec, for the defendant.

This motion was heard on April 3, 2006, at Montreal, Quebec, by Martineau, J., of the Federal Court, who delivered the following judgment on April 7, 2006.