Dismissal of Action Reconsidered Reviving Part of Action
Atomic Energy of Canada Limited v. Areva NP Canada Ltd. and Societe des Participations du Commissariat A L'Energie Atomique, 2009 FC 1119 (Zinn, J.)

Diane E. Cornish Joseph R. Marin for the Plaintiff
May Cheng and Leanne Shaughnessy for the Defendants

November 2, 2009

Justice Zinn of the Federal Court granted a motion brought by Areva NP Canada Ltd. and its parent, Societe des Participations du Commissariat A L'Energie Atomique (Areva), for summary judgment.

On September 30, 2009, Justice Zinn dismissed a trade-mark infringement action by Atomic Energy of Canada Limited (Atomic) against Areva wherein Atomic alleged Areva's adoption of an A Design infringed its rights in a Flying A Design mark that it had been using since the 1960's. Atomic also alleged passing off, copyright infringement, invalidity of trade-mark registration and depreciation of goodwill arising from the use of the A Design.

Atomic moved for reconsideration pursuant to Rule 397 of the Federal Court Rules on the ground that the Order did not accord with the Reasons which only make findings in respect of three of Atomic's five claims.

In its submissions, Atomic relied on Rule 397(2) which deals with clerical errors, errors or omissions in an order. Justice Zinn held that Rule 397(2) did not apply as there were no clerical mistakes, errors or omissions that warranted the Court's intervention. Justice Zinn did, however, find that the Order did not accord with the Reasons as the Reasons only made findings with three of the five issues in dispute, namely trade-mark infringement, passing off and copyright infringement.

Justice Zinn further found that Areva had argued at the summary judgment application that it would consent to having its Counterclaim dismissed without costs if the main action was dismissed in its entirety. The fact that no such Order issued was further proof that it was not intended in the Reasons to dismiss the action in its entirety.

The motion for reconsideration was granted thereby allowing Atomic's action to proceed to trial on its claims for depreciation of goodwill and on its claim that Areva's registration of the A Design mark is invalid. Mr. Justice Zinn's September 30, 2009 Order was further amended allowing Areva's Counterclaim to proceed to trial.

By: Taryn Burnett, Gowling Lafleur Henderson LLP