In a decision published today, the Federal Court of Appeal upheld a lower court decision striking the plaintiff’s further amended statement of claim on the basis that it did not provide sufficient details of the defendant’s activity that would constitute infringement. The Court upheld the view that the allegations were not on any knowledge or evidence of the plaintiff of the defendant’s activities and the plaintiff hoped to fill in the gaps in its knowledge through discovery.In Heli-Tech v. Weyerhaeuser, 2011 FCA 193, the Federal Court of Appeal held:

[29]           This argument of Heli Tech fails to address the deficiencies in the [further amended statement of claim] identified by Justice O’Reilly, and by Prothonotary Lafrenière. As I understand their decisions, the problem is not that Brascan Timberlands MGP and Island Timberlands GP have not been told clearly enough that Heli Tech accuses them of using the patent methods to harvest logs, and accuses Island Timberlands GP of inducing infringement by hiring others to use the patented methods harvest logs. Rather, the problem is that the allegations in the [further amended statement of claim] relating to Brascan Timberlands MGP and Island Timberlands GP purport to describe log harvesting methods used by them or their contractors, but the descriptions merely quote or paraphrase key parts of the patent disclosure and claims, leaving only speculation and inferences with no factual foundation. Further, the clarifying evidence offered by Heli Tech does not link the alleged wrongful acts to Brascan Timberlands MGP or Island Timberlands GP.

[30]           In my view, it was reasonably open to Justice O’Reilly to conclude, on the basis of the record before him, that (a) the allegations in the [further amended statement of claim] against Brascan Timberlands MGP and Island Timberlands GP are not based on any evidence or knowledge of Heli Tech as to the log harvesting methods employed by or for the benefit of Brascan Timberlands MGP or Island Timberlands GP; (b) in pleading as it did, Heli Tech hoped to fill in the gaps in its knowledge of the log harvesting methods of Brascan Timberlands MGP and Island Timberlands GP through discovery; and (c) the evidence submitted by Heli Tech in relation to the motions is not capable of curing the deficiencies in the [further amended statement of claim]. In my view, in the face of those conclusions and the pleadings history, Justice O’Reilly exercised his discretion judicially when he refused to give Heli Tech leave to amend the [further amended statement of claim].

The decision was an appeal from a decision of Justice O’Reilly in 2009 FC 592.