The Potential Cost and Tactical Consequences of a Motion to Strike
Michael J. Culhane v. Philip Andrew Croucher d.b.a. Electrocution Technical Publishers et al. 2009 FC 769 (Hughes, J.)

July 27, 2009

Michael J. Culhane for the Plaintiff, Michael J. Culhane
Mala Joshi for the Defendants, Electrocution Technical Publishers et al.

Ten of the fifteen Defendants in this copyright infringement action brought a motion to strike out the Statement of Claim or being deficient. Prior to the motion, the Defendants did not attempt to resolve the issue of the deficient pleading with the self-represented Plaintiff, who is a lawyer. 

The Court found that the Statement of Claim raised unsubstantiated allegations and allowed the motion. However, as the Statement of Claim was not so deficient as to be struck out without leave to amend, the Court gave the Plaintiff thirty days to file an amended Statement of Claim with $500 in fixed costs payable to the moving Defendants. The Court fixed costs in that manner, as it was the Court’s view that the moving parties did not make reasonable efforts to resolve the deficient pleading before bringing the motion.  The Court also gave the Plaintiff a roadmap of some of the deficiencies in the Statement of Claim to be corrected, thus alerting the Plaintiff as to the amendments he would need to make to his pleadings if the action continues.

By: Lorraine M. Fleck, Barrister & Solicitor, Trade-mark Agent