The moving parties sought to dismiss the plaintiff's action under Rule 21.01(3)(b) for lack of legal capacity, arguing the claims were essentially for trademark infringement but failed to plead the Trademarks Act.
The court dismissed this ground, finding the plaintiff's claims were properly grounded in common law breach of contract, passing-off, and unjust enrichment.
The moving parties also argued the action was an abuse of process due to a related proceeding in Toronto.
The court deferred the abuse of process issue, strongly recommending the action be transferred to Toronto and joined with the related proceeding.
