Elbit Systems Electro-optics Elop Ltd. v. Selex ES Ltd., 2016 FC 1129

Justice Martineau - 2016-10-11

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This is an appeal by the defendant, Selex, from Prothonotary Mireille Tabib’s order dated September 2, 2016 (2016 FC 1000), which dismissed in part their motion to strike portions of the statement of claim. ... The action claims that the defendant has, or will imminently infringe the ‘754 Patent by offering, agreeing or contracting with GDC to supply its systems, but also that the defendant is inducing or procuring the infringement of the patent by GDC and the Canadian Government. Further, the plaintiff alleges that GDC has or will consequently induce infringement by the Government of Canada. ... The role of the Motions Judge in deciding the merit of an appeal of a discretionary order of a prothonotary is limited to verify whether a reviewable error has been made by the prothonotary (Hospira at paras 64, 69, 78 and 79). In the case at bar, it was not plain and obvious for the Prothonotary that the impugned paragraphs of the statement of claim should be struck out under Rule 221 because they disclosed no reasonable cause of action or were otherwise deficient. In the absence of an error on a question of law or an extricable legal principle, intervention is warranted only in cases of palpable and overriding error by the Prothonotary. This is not the case here and I have no reason to intervene today in the exercise of the Prothonotary’s discretion to refuse to strike a proceeding.

Decision relates to:



Canadian Intellectual Property