August Image, LLC v. airG Inc, 2021 FC 272

Justice Mosley - 2021-03-26

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The central issue on this appeal is whether the Prothonotary erred in granting the Plaintiff’s motion to strike portions of the Defence without leave to amend. A secondary issue is whether the Prothonotary erred in permitting the amendment to the description of the Defendant’s domain name. ... Here it was not plain and obvious that no amendment could be made especially to those paragraphs which the prothonotary struck on the basis that there were insufficient material facts pleaded in support. The prothonotary granted leave to the Plaintiff to amend its Statement of Claim. The same consideration should have been afforded the Defendant. ... The decision on the motion to amend could have gone either way. The prothonotary was correct to conclude that a reasonable person reading the Claim would understand it to be referring to the Defendant’s website notwithstanding the 600 domains in which “www.” does not appear. I am satisfied that the prothonotary made a palpable and overriding error in striking the following paragraphs of the Defence without leave to amend: 8-12, 14-20, 23, 25, 31, 33, and 34. The prothonotary did not err in permitting the amendment of the Claim to delete the prefix “www.”.

Decision relates to:


Canadian Intellectual Property