Dupont Can. Inc. v. Glopak Inc., (2000) 257 N.R. 160 (FCA)

• Judge: Décary, Létourneau and Noël, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 15, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 257 N.R. 160 (FCA)

Dupont Can. Inc. v. Glopak Inc. (2000), 257 N.R. 160 (FCA)

MLB headnote and full text

Temp. Cite: [2000] N.R. TBEd. JN.013

Dupont Canada Inc. (appellant/plaintiff) v. Glopak Inc. (respondent/defendant)

(A-68-99)

Indexed As: Dupont Canada Inc. v. Glopak Inc.

Federal Court of Appeal

Décary, Létourneau and Noël, JJ.A.

May 15, 2000.

Summary:

Dupont alleged that Glopak infringed its patent respecting polymer film. Glopak applied for a summary declaration that its GI-911 film did not infringe the patent.

The Federal Court of Canada, Trial Di­vision, in a decision reported at 146 F.T.R. 301, dismissed the application because the GI-911 film was never in issue in the action. Dupont applied to amend its state­ment of claim to specifically plead that the GI-911 film infringed its patent.

The Federal Court of Canada, Trial Di­vision, in a decision reported at [1999] F.T.R. Uned. 25, dismissed the application. Dupont appealed.

The Federal Court of Appeal allowed the appeal.

Practice - Topic 2119

Pleadings - Amendment of pleadings - Pleading matter arising after action com­menced - Dupont alleged that Glopak infringed its patent respecting polymer film - Glopak applied for a summary declara­tion that its GI-911 film did not infringe the patent - The motions judge found against Dupont on the infringement issue, but dismissed the application on the pro­cedural ground that the GI-911 film was never in issue in the action (not on the market when Dupont filed its statement of claim) - Dupont applied to amend its state­ment of claim to plead that the GI-911 film infringed its patent - On appeal, the Federal Court of Appeal allowed the amendment - As the noninfringement finding was obiter, Dupont could only exercise its right of appeal by first obtain­ing a final decision on the issue in the Trial Division - Thus, proceeding again in the Trial Division was unavoidable and leave to amend was the most practical way to achieve this result.

Counsel:

Ronald E. Dimock and Dino P. Clarizio, for the appellant/plaintiff;

Nelson Landry and Frédérique Amrouni, for the respondent/defendant.

Solicitors of Record:

Dimock Stratton Clarizio, Toronto, Ontario, for the appellant/plaintiff;

Ogilvy Renault, Montreal, Quebec, for the respondent/defendant.

This appeal was heard in Montreal, Que­bec, on May 15, 2000, by Décary, Létourneau and Noël, JJ.A., of the Federal Court of Appeal. Décary, J.A., orally delivered the following decision for the court on the same date.