CONSTRUCTING A PROPER STATEMENT OF CLAIM: Federal Court Strikes Statement of Claim in The Construction Specifications Institute, Inc.

For those looking for a blueprint as to how to draft a statement of claim with sufficient particulars, the Federal Court’s November 26, 2025 decision of The Construction Specifications Institute, Inc. hammers home what is required of the Plaintiff in the context of a copyright and trademark infringement proceeding.

The decision arises from the Defendants’, Bibliotech Inc. et al, motion to strike The Construction Specifications Institute, Inc.’s Fresh as Amended Statement of Claim without leave to amend. The plaintiff had already amended its statement of claim once prior to the motion and provided a response to the Defendants’ demand for particulars, but the Defendants alleged that the claim still failed to include material facts necessary to support the causes of action therein. The dispute itself is centered on the Plaintiff’s “MasterFormat” system, which lists and categorizes construction products and tasks with a numerical code, as well as trademark infringement of the MasterFormat trademark.

The case management judge set out the law on motions to strike, emphasizing that the Court is to consider whether the pleadings set out a recognized cause of action (although the claim itself may be novel) and material facts to establish all elements of the action, doing so with a generous reading of the pleadings and allowing for some drafting deficiencies. The case management judge also explained that the pleadings must: (i) set out facts that are capable of giving rise to the pleaded cause of action; (ii) disclose the nature of the action based on the pleaded facts; and (iii) indicate appropriate relief sought considering the type of action and jurisdiction of the Court.   

With respect to the copyright infringement claim, the Defendants alleged that the claim was ambiguous as to the exact “work” in which copyright was alleged to have been infringed. The pleadings themselves did not limit the claim to solely the MasterWork, but rather included statements such as “the Work is further described but not limited by” the MasterWork, that copyright includes the MasterWork, and additionally gave several differing descriptions as to the content of the “work”. The case management judge referenced the Federal Court decision of Fox Restaurant Concepts LLC, in which the Court found that a plaintiff must plead a closed and specific list of works at issue in a copyright action, and ultimately found the pleadings to be too ambiguous as to the identity of the work at issue. To the extent the Plaintiff was indeed alleging that the MasterWork was the infringed work, the case management judge also noted the lack of Canadian precedents with respect to copyright in a taxonomy, but explained that the claim could not be struck merely because Plaintiff’s case would be novel.

Similarly, the case management judge struck the trademark infringement pleadings on the grounds that, while section 22 of the Trademarks Act provides that an action for depreciation of goodwill under the Act requires the mark at issue to be registered, it was unclear from the pleadings as to whether the registered MasterWork trademark was the subject of the claim.

The case management judge also struck the plaintiff’s infringement of moral rights in copyright claim, as section 14.1 of the Copyright Act provides that moral rights of an author cannot be assigned, and the Plaintiff was not the author of the MasterWork (rather, it had been authored by employees and contracted volunteers).

Ultimately, the case management judge struck the entirety of the claim but granted the Plaintiff leave to amend, despite the fact that the Plaintiff had been modifying its pleadings over the course of a year, due to the high bar required to strike a claim without leave to amend.

In sum, this decision is a strong reminder to counsel: have a concrete foundation for each cause of action with clear and concise material facts as a solid scaffolding for each claim.