Plaintiff sued defendants for infringement of certain industrial designs related to floor heating grates. Defendants sought particulars with respect to three categories: store outlets and locations where plaintiff’s products were sold; scope and nature of its products; and timeline of sale of its products. Defendants submitted particulars were relevant to its defences of whether plaintiff was proprietor for purposes of Industrial Design Act (Can.), and whether it had registered its designs in timely fashion. Motion judge denied request for particulars on basis that defendants had embarked upon impermissible fishing expedition in respect of matters that were not relevant to plaintiff’s claim, and/or were within defendants’ own knowledge. Defendants appealed. Appeal dismissed. Purpose of particulars was to facilitate ability to plead. Defendants’ request for particulars related to matters relevant to propriety of information sought on discovery rather than information they required in order to plead. No palpable and overriding error was made in concluding defendants were engaged upon fishing expedition. Finding that some particulars sought were within knowledge of defendant HD was fact-based finding that did not give rise to any error.
Imperial Manufacturing Group Inc. v. Decor Grates Inc. (Apr. 20, 2015, F.C.A., David Stratas J.A., Wyman W. Webb J.A., and A.F. Scott J.A., File No. A-415-13) 253 A.C.W.S. (3d) 799.