Plaintiff’s amended statement of claim was undoubtedly vexatious pleading

Intellectual Property – Trademarks - Infringement

Plaintiff brought action against multiple defendants for trademark infringement. Defendants’ motions to strike out his statement of claim without leave to amend were granted while plaintiff’s motion for relief, including to disqualify counsel representing certain of defendants, was dismissed . Plaintiff appealed. Appeal dismissed. Plaintiff’s argument that motion judge should not have heard motions to strike must fail, as prior order had provided for motions to be dealt with during general sittings irrespective of appointment of case management judge. There was no merit to plaintiff’s contention that motion judge should have awaited appointment of case management judge. Motion judge was alive to plaintiff’s motion to disqualify counsel when it was agreed that counsel representing other defendants would argue on behalf of all defendants and committed no error in determining in what order motions should be heard. Motion judge did not err by proceeding with motions to strike on their merits without requiring fresh filing to deal with plaintiff’s amended statement of claim as defendants properly advised of their intention to proceed with motions after amended statement. There was no merit to plaintiff’s claim that his rights under Canadian Charter of Rights and Freedoms were violated. Plaintiff did not meet test for reasonable apprehension of bias, as motion judge did not manifest any partiality or bias. Plaintiff’s amended statement of claim was undoubtedly vexatious pleading that was properly struck for that reason.

Badawy v. 1038482 Alaberta Ltd. (2019), 2019 CarswellNat 2133, 2019 FCA 150, Eleanor R. Dawson J.A., Johanne Gauthier J.A., and Marianne Rivoalen J.A. (F.C.A.); affirmed (2018), 2018 CarswellNat 4076, 2018 CarswellNat 4422, 2018 FC 807, 2018 CF 807, Glennys L. McVeigh J. (F.C.).

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