• Dismissed Motion to Amend Statement of Claim Upheld on Appeal
  • April 3, 2017 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Nov Downhole Eurasia Limited v. Tll Oilfield Consulting Ltd, 2017 FCA 32

    The Court of Appeal upheld the Federal Court's decision denying leave to amend the Appellants' statement of claim in a patent infringement action. The proposed amendments fell into two categories: the addition of individuals as defendants in the action and a claim for joint and several liability. The three individuals sought to be added were both directors and officers of one of the respondents or involved in the development of an allegedly infringing product.

    The Court of Appeal concluded that the judge did not err in law in identifying and applying the legal principles concerning the amendment of pleadings, or in its understanding of this Court's decision regarding the personal liability of directors and officers in Mentmore Manufacturing Co. v. National Merchandise Manufacturing Co. (1978), 40 C.P.R. (2d) 164. Furthermore, the Court found that the proposed pleading was deficient because it did not contain material facts with sufficient specificity to establish "the deliberate, wilful and knowing pursuit of a course of conduct," as described in Mentmore . The Court of Appeal also found that the judge made no reviewable error in declining the second category of amendments. The Court noted that the material facts, to the effect that each of the corporate defendants infringed the patent, were not sufficient to support a claim for joint and several liability.

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