Jurisprudence récente: lettres de mise en demeure pour des dossiers de PI

Peak Innovations Inc. v. Pacific Rim Brackets Ltd., 2009 BCSC 1034 (CanLII)

[1]               The application before the Court in this action centres around whether a lawyer (and his client) is protected by an absolute privilege in delivering a cease and desist letter to the parties who are the intended defendants and those intimately connected with the proposed suit. 

[2]               Smart & Biggar sent a cease and desist letter dated April 10, 2007 (the “Letter”) on behalf of its client Pacific Rim Brackets Ltd. (“Pacific Rim”) concerning allegations of infringement of its intellectual property rights.  The Letter was sent to the alleged infringing parties, Peak Innovations Inc. and Peak Products Manufacturing Inc. (“Peak” or “Peak companies”) and the Home Depot and to Steven Levy, who was trade-marks counsel for Home Depot on a worldwide basis.  The Letter was sent preparatory to bringing an action against the alleged infringing parties.  When no satisfactory reply was received, infringement actions were brought and are still being prosecuted.  There are two actions — in the British Columbia Supreme Court for passing-off, and in the Federal Court of Canada for trade-mark infringement (the “Infringement Actions”). 

[3]               In this action, the alleged infringing parties claim that the cease and desist Letter was defamatory or otherwise actionable; they sue Pacific Rim and Smart & Biggar for defamation and related causes of action.  The defendants say that the sending of the Letter was protected by absolute privilege and that all the claims of the plaintiffs fail for this reason. 


[62]           The following objective patent facts are before the court in this case: 

        The  allegations in the Letter are sufficiently related to the pleadings in the Infringement Actions which followed; 

        At the time of the Letter’s distribution there were already conditional instructions to sue; 

        The limited extent of the distribution of the Letter to intended defendants only; 

        The fact that the Infringement Actions followed two weeks after the Letter’s distribution, a time frame reflected in the body of the Letter. 

[63]           These are objective patent facts and circumstances which allow the Court to recognize that a pre-litigation statement was made by a lawyer acting within his duty to his client in alerting potential parties to the proceedings.  Accordingly, the Letter was written and delivered on an occasion of absolute privilege. 

[64]           For the above reasons, I have concluded that the defendants’ application under Rule 18A for dismissal of the plaintiffs’ claim must be granted.

One Response to “Jurisprudence récente: lettres de mise en demeure pour des dossiers de PI”

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