Sandpiper Distributing Inc. v. Ringas, 2019 FC 1264

Justice Walker - 2019-10-07

Read full decision. Summary prepared by Alan Macek:

The underlying dispute between the parties involves allegations of trademark and copyright infringement. ... The Plaintiff filed a discontinuance of the main action on July 29, 2019 (Discontinuance). The Counterclaim has not been discontinued. ... On January 3, 2019, the Defendants filed a Notice of Motion requesting, in part: a declaration that the Defendants were entitled to conduct an examination for discovery of the Plaintiff pursuant to Rule 236(2); and, an Order for the Plaintiff to produce an affidavit of documents pursuant to Rule 225 in the prescribed form not later than January 30, 2019. ... In the January 11 Order, Prothonotary Tabib dismissed the Defendants’ motion and ordered costs in favour of the Plaintiff. In so doing, she made two critical findings. Prothonotary Tabib first found that the pleadings in this action were not closed. As a result, the time for the Plaintiff to serve their affidavit of documents had not yet begun to run because Rule 223(1) requires each party to serve an affidavit of documents within 30 days of the close of pleadings. ... She found that, once the Defendants became Plaintiffs by Counterclaim, they lost the benefit of Rule 236(2) and were not entitled to examine the Plaintiff on discovery until the conditions set out in Rule 236(1) had been met, namely that the pleadings are closed and the parties have exchanged their affidavits of documents. ... In conclusion, I decline to exercise my discretion to consider the Appeal. The factors listed by the Defendants in support of an exercise of discretion have not persuaded me to depart from the general principle that the Court will not decide a matter that raises no live controversy.

Decision relates to:



Canadian Intellectual Property