Date: 20060629
Docket: T-1591-05
Citation: 2006 FC 832
BETWEEN:
DISTRIMEDIC INC.
Plaintiff
and
DISPILL INC. and
RICHARDS PACKAGING INC.
Defendants
AND BETWEEN:
RICHARDS PACKAGING INC.
Plaintiff by counterclaim
and
DISTRIMEDIC INC., ROBERT POIRIER
and CLAUDE FILIATRAULT
Defendants by counterclaim
REASONS FOR ORDER
PROTHONOTARY MORNEAU
[1] This is a motion by the plaintiff-defendant by counterclaim Distrimedic Inc. and the defendants by counterclaim Robert Poirier and Claude Filiatrault (hereinafter collectively Distrimedic) to have the Court order that particulars be provided and proceed to strike out certain allegations in the defence and counterclaim (the defence) filed by the defendants and the plaintiff by counterclaim (hereinafter collectively Richards Packaging).
Background
[2] In its amended statement of claim filed on November 3, 2005, Distrimedic contends that it manufactures, uses, sells, or proposes to manufacture, use or sell a kit for the manufacture of a set of individual pill containers (hereinafter the Distrimedic product) which it markets or intends to market under the trade-mark DISTRIMEDIC.
[3] With respect to Richards Packaging, it owns Canadian patent 2,207,045 (patent '045) entitled "kit and process for the manufacture of a set of individual pill containers". It would appear that Richards Packaging sells such a kit and process under the registered trade-mark DISPILL.
[4] In the past, Richards Packaging sent Distrimedic a letter in which it stated the following:
[TRANSLATION]
Further, we understand that you are offering to sell to the clients of Richards Packaging a product that claims to be similar to the product DISPILL® but under a different trade-mark. Any such reproduction copying or using the patented characteristics of the product DISPILL® is an infringement of Richards Packaging's patent [the patent in dispute], which Richards Packaging intends to protect vigorously.
[5] Faced with that, Distrimedic therefore brought an action for a declaration of non-infringement of claims 1 to 28 of patent '045, under subsection 60(2) of the Patent Act, R.S.C. 1985, c. P-4, as amended.
[6] Subsection 60(2) reads as follows:
| Declaration as to infringement
(2) Where any person has reasonable cause to believe that any process used or proposed to be used or any article made, used or sold or proposed to be made, used or sold by him might be alleged by any patentee to constitute an infringement of an exclusive property or privilege granted thereby, he may bring an action in the Federal Court against the patentee for a declaration that the process or article does not or would not constitute an infringement of the exclusive property or privilege.
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Déclaration relative à la violation
(2) Si une personne a un motif raisonnable de croire qu'un procédé employé ou dont l'emploi est projeté, ou qu'un article fabriqué, employé ou vendu ou dont sont projetés la fabrication, l'emploi ou la vente par elle, pourrait, d'après l'allégation d'un breveté, constituer une violation d'un droit de propriété ou privilège exclusif accordé de ce chef, elle peut intenter une action devant la Cour fédérale contre le breveté afin d'obtenir une déclaration que ce procédé ou cet article ne constitue pas ou ne constituerait pas une violation de ce droit de propriété ou de ce privilège exclusif.
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[7] On or about November 8, 2005, Richards Packaging Inc. filed with the Canadian Intellectual Property Office (hereinafter the CIPO) a disclaimer (the disclaimer or attempted disclaimer) pursuant to subsection 48(1) of the Patent Act, supra, which provides:
| 48. (1) Whenever, by any mistake, accident or inadvertence, and without any willful intent to defraud or mislead the public, a patentee has
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48. (1) Le breveté peut, en acquittant la taxe réglementaire, renoncer à tel des éléments qu'il ne prétend pas retenir au titre du brevet, ou d'une cessation de celui-ci, si, par erreur, accident ou inadvertance, et sans intention de frauder ou tromper le public, dans l'un ou l'autre des cas suivants :
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| (a) made a specification too broad, claiming more than that of which the patentee or the person through whom the patentee claims was the inventor, or
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a) il a donné trop d'étendue à son mémoire descriptif, en revendiquant plus que la chose dont lui-même, ou son mandataire, est l'inventeur;
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| (b) in the specification, claimed that the patentee or the person through whom the patentee claims was the inventor of any material or substantial part of the invention patented of which the patentee was not the inventor, and to which the patentee had no lawful right,
the patentee may, on payment of a prescribed fee, make a disclaimer of such parts as the patentee does not claim to hold by virtue of the patent or the assignment thereof.
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b) il s'est représenté dans le mémoire descriptif, ou a représenté son mandataire, comme étant l'inventeur d'un élément matériel ou substantiel de l'invention brevetée, alors qu'il n'en était pas l'inventeur et qu'il n'y avait aucun droit.
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[8] On December 1, 2005, Richards Packaging filed the defence in which it stated that Distrimedic infringed patent '045. On that point, the defence is based in large part on the disclaimer filed on November 8, 2005.
[9] The defence also raises against Distrimedic several other challenges based on Richards Packaging's intellectual property rights. On that point, Richards Packaging summarizes as follows at paragraph 3 of its written submissions filed against this motion, these challenges:
3. Richards also claims that Distrimedic, Poirier and Filiatrault infringed copyright, infringed Richards' trade mark registration no. 547,764 for DISPILL, caused confusion between the business, services and wares of the parties, that Distrimedic, Poirier and Filiatrault have passed off their business, wares and services as and for the business, wares and services of Richards, that Distrimedic, Poirier and Filiatrault depreciated the value of the goodwill attaching to the DISPILL trade mark and that Poirier, Filiatrault and Distrimedic made false and misleading statements tending to discredit the business, services and wares of Richards'.
[10] On or about December 20, 2005, counsel for Richards Packaging Inc. received from the CIPO a notice to the effect that the disclaimer had been denied since it would have had the effect of broadening the scope of one of the patent '045 claims, which is not allowed in the context of a disclaimer. On January 18, 2006, Richards Packaging Inc. filed an application for judicial review against this decision by the CIPO.
[11] In a decision dated February 27, 2006, I granted a motion by Distrimedic to be named as a respondent in that application for judicial review.
[12] We will begin our analysis of the motion under review by first dealing with the motion for particulars sought by Distrimedic. Second, we will then proceed (see paragraphs 27 et. seq.) to analyze the orders to strike sought by Distrimedic.
Analysis
I Particulars sought by Distrimedic
[13] The standards for the pleadings in matters involving details or particulars are set out in section 174 and subsection 181(2) of the Federal Courts Rules (the Rules). This is the text:
| 174. Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.
181. (2) On motion, the Court may order a party to serve and file further and better particulars of any allegation in its pleading.
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174. Tout acte de procédure contient un exposé concis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l'appui de ces faits.
181. (2) La Cour peut, sur requête, ordonner à une partie de signifier et de déposer des précisions supplémentaires sur toute allégation figurant dans l'un de ses actes de procédure.
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[14] In Glaxo Canada Inc. v. Canada(Minister of National Health and Welfare) et al. (1987), 15 C.P.R. (3d) 1 (F.C.T.D.), at page 10, Mr. Justice Rouleau makes the following remark regarding the applicable requirement for particulars:
Proper pleadings define with precision and clarity the question in dispute between the litigants. Both parties are entitled to fair notice of the case which they are bound to meet so that they may procure evidence relevant to the issues disclosed by the pleadings.
[15] However, any motion for particulars appears also to have certain restrictions. In short, before making an order in the matter, the Court must consider whether a party has enough information to be able to understand the opponent's position and prepare a responsive answer, whether a defence or a reply. (See Astra Aktiebolag v. Inflazyme Parmaceuticals Inc. (1995), 61 C.P.R. (3d) 178 (F.C.T.D.), at page 184.)
[16] In Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al (1979), 43 C.P.R. (2d) 285 (F.C.T.D.), at page 287, Mr. Justice Marceau explains to what extent at the pleadings stage the defendant is entitled to obtain details regarding the plaintiff's evidence. In my opinion, the following observations by Marceau J. may be applied mutatis mutandis to the motion for particulars filed by Distrimedic regarding the defence at issue:
At that early stage, defendant is entitled to be furnished all particulars which will enable him to better understand the position of the plaintiff, see the basis of the case made against him and appreciate the facts on which it is founded so that he may reply intelligently to the statement of claim and state properly the grounds of defence on which he himself relies, but he is not entitled to go any further and require more than that.
[Emphasis added.]
[17] With those precedents in mind, we can now address the various particulars requested by Distrimedic in its motion.
[18] Distrimedic's first request for particulars is formulated as follows:
[TRANSLATION]
(a) An order requiring that particulars be provided with respect to the specific elements of the invention described in claims 1 to 28 of patent no. 2,207,045 that are found on the DISTRIMEDICR product and that are such that the DISTRIMEDICR product infringes each of the claims 1 to 28 of patent no. 2,207,045, sufficiently specific to satisfy the Court, assuming the truthfulness of what is alleged, that the defendants have a cause of action (paragraphs 12, 14, 18(c)(i) and 32 of the Defence and counterclaim);
[19] I do not intend to order that these particulars be provided, for the following reasons.
[20] First, in November 2005, Distrimedic was able to bring a declaratory action, itself contending that its Distrimedic product does not infringe the claims of patent '045. This simple fact leads us to determine that Distrimedic is already able to identify whether or not the specific elements of the invention are found on its product.
[21] Second, as Richards Packaging points out, the affidavit filed by Distrimedic in support of this motion in general, namely an affidavit by one Mr. Ouimet working as a paralegal with the firm of counsel representing Distrimedic, does not establish a real need with respect to those particulars for the purposes of filing a reply and defence to counterclaim.
[22] The second category of particulars sought by Distrimedic involves paragraph 30 of the defence. However, this request for particulars has vanished since Richards Packaging has recognized that the present wording of that paragraph 30 is deficient and it wishes to be able to amend its defence to substitute it with the version that it asserts at paragraph 41 of its written submissions. In view of Distrimedic's consent to this new version of paragraph 30 of the defence, Richards Packaging will be given leave to include this new version of paragraph 30 in an amended defence to be filed within twenty (20) days of the order accompanying these reasons.
[23] The third category of particulars sought contemplates paragraph 38 of the defence. This paragraph reads:
38. Since at least 2005, Distrimedic, Filiatrault and Poirier have, without the consent of the Defendant Richards Packaging (Plaintiff by Counterclaim), authorized the copying of the Dispill Label Form by pharmacies. An icon in the computer program for printing patient information onto a permanent container-sealing sheet or replaceable container-sealing sheet uses the word DISTRIMEDIC, however, when, as the Defendants to the Counterclaim instruct, a user clicks on such icon the Dispill Label Form appears. The patient information is then inputted and printed onto a Distrimedic container-sealing sheet.
[24] With respect to this paragraph, Distrimedic seeks in its motion the following particulars:
[TRANSLATION]
(a) Identify the users (names, addresses) allegedly advised by the defendants by counterclaim to proceed in the manner described in this allegation?
(b) When did these defendants by counterclaim allegedly advise these users to proceed in the manner described in this allegation?
(c) In what way did these defendants by counterclaim advise these users to proceed in the manner described in this allegation?
or in the alternative, the following particulars and documents:
(d) How did the defendants by counterclaim authorize the copy of the Dispill Label Form?
(e) In which computer program does the icon appear that uses the word DISTRIMEDIC? Who manufactures this computer program?
(f) Is the form that appears when the icon using the word DISTRIMEDIC is selected identical to the Dispill Label Form? If not, provide a copy of the form that appears when the icon using the word DISTRIMEDIC is selected.
[25] As noted earlier, in the absence of an affidavit truly establishing the need for particulars for the purposes of the pleadings, I intend to require only that Richards Packaging provide, within twenty (20) days of the order accompanying these reasons, the two particulars that follow, namely:
- How did the defendants by counterclaim authorize the copy of the Dispill Label Form?
- Provide a copy of the form that appears when the icon using the word DISTRIMEDIC is selected.
[26] Now Distrimedic's motion to strike should be addressed.
II Distrimedic's motion to strike
[27] In matters of striking allegations pursuant to subsection 221(1) of the Rules, we should consider the following statements by the Federal Court of Appeal in Sweet et al. v. Canada (1999), 249 N.R. 17, at pages 23 and 24:
[6] Statements of claim are struck out as disclosing no reasonable cause of action only in plain and obvious cases and where the court is satisfied that the case is beyond doubt (see [1980] 2 S.C.R. 735">Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R. (3d) 1, at 740 [S.C.R.]; Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R. (4th) 481; 12 Admin. L.R. 16 and Hunt v. T. & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 4 C.C.L.T. (2d) 1; 43 C.P.C. (2d) 105; 49 B.C.L.R. (2d) 273; 74 D.L.R. (4th) 321). The burden is as stringent when the ground argued is that of abuse of process or that of pleadings being scandalous, frivolous or vexatious (see Creaghan Estate v. Canada, [1972] F.C. 732 (T.D.), at 736 (T.D.), Pratte, J.; Waterside Ocean Navigation co. v. International Navigation Ltd. et al, [1977] 2 F.C. 257 (T.D.), at p. 259 (T.D.), Thurlow, A.C.J.; Micromar International Inc. v. Micro Furnace Ltd. (1988), 23 C.P.R. (3d) 214 (F.C.T.D.), Pinard, J., and Connaught Laboratories Ltd. v. Smithkline Beecham Pharma Inc. (1998), 158 F.T.R. 194; 86 C.P.R. (3d) (T.D.) Gibson, J.). The words of Pratte, J. (as he then was), spoken in 1972, in Creaghan Estate, supra, are still very much appropriate :
"... a presiding judge should not make such an order unless it be obvious that the plaintiff's action is so clearly futile that it has not the slightest chance of succeeding ..."
[28] That being the case, we should now address the various allegations that Distrimedic is seeking to have struck from the defence filed by Richards Packaging.
[29] The first order to strike sought by the Distrimedic involves the various allegations that Richards Packaging raises in its defence essentially to support the validity of various claims in patent '045 and their infringement by Distrimedic. In those allegations, Richards Packaging constantly draws a distinction between the wording of the claims before and after the disclaimer that it sent to the CIPO on November 8, 2005.
[30] More specifically, Richards Packaging's defence contains the following allegations that are pointed out by Distrimedic.
[31] At paragraph 13 of the defence, it is alleged:
13. As to paragraphs 16-18 of the Amended Statement of Claim, the Defendants state that on or about November 8, 2005, Richards Packaging filed a disclaimer in respect of Canadian Patent No. 2,207,045 which stated the following in respect of claims 15-21:
. . .
[32] At paragraph 14 of the defence, it is alleged:
14. By its manufacture, use, marketing, offering for sale and sale of the DISTRIMEDIC Product, and by its promotion and inducement of such use, the Plaintiff has threatened to infringe and infringed the exclusive right, privilege and liberty of Richards Packaging as claimed in claims 1-28 of the Canadian Patent No. 2,207,045 prior to the disclaimer and claims 1-15, 17-28 of Canadian Patent No. 2,207,045 as they read after the disclaimer and continues to infringe such exclusive rights.
[Emphasis added.]
[33] At paragraph 18(a) of the defence, it is alleged:
18. The Defendant Richards Packaging (Plaintiff by Counterclaim) claims:
(a) a declaration that Canadian Patent No. 2,207,045 and current claims 1-15, 17-28 thereof and claims 1-28 of Canadian Patent No. 2,207,045 prior to the disclaimer are valid;
[Emphasis added.]
[34] At paragraph 18(c)(i) of the defence, it is alleged:
18. The Defendant Richards Packaging (Plaintiff by Counterclaim) claims:
(c) a declaration that Distrimedic, Robert Poirier ("Poirier") and Claude Filiatrault ("Filiatrault") have:
(i) threatened to infringe and infringed current claims 1-15, 17-28 of Canadian Patent No. 2,207,045 and prior to the disclaimer in respect of Canadian Patent No. 2,207,045 threatened to infringe and infringed claims 1-14, 22-28 and prior claims 15-21 of Canadian Patent No. 2,207,045;
[Emphasis added.]
[35] At paragraph 32 of the defence, it is alleged:
32. Filiatrault and Poirier arranged for Distrimedic to manufacture, use, market, offer for sale and sell the DISTRIMEDIC Product, and by its promotion and inducement of such use, Filiatrault, Poirier and Distrimedic have threatened to infringe and infringed the exclusive right, privilege and liberty of the Defendant Richards Packaging (Plaintiff by Counterclaim) as claimed in claims 1-28 of Canadian Patent No. 2,207,045 prior to the disclaimer and claims 1-15, 17-28 of Canadian Patent No. 2,207,045 as they read after the disclaimer and Filiatrault, Poirier and Distrimedic continue to infringe such exclusive rights.
[Emphasis added.]
[36] Yet, as reviewed earlier at paragraph 10, supra, we know that on December 20, 2005, Richards Packaging was advised by the CIPO that its disclaimer had been refused since it would have the effect of broadening the scope of one of the patent '045 claims.
[37] As we know, there was an application for judicial review of that decision by the CIPO. Richards Packaging describes the subject of this application for judicial review as follows at paragraph 15 of its written submissions filed against the motion under review:
15. The application for judicial review which is the subject of Federal Court File No. T-92-06 seeks the issuance of a writ of mandamus against the Commissioner of Patents requiring the Commissioner to register the Disclaimer and a declaration that the Disclaimer was filed and effective as of its filing date of November 8, 2005. No order is sought regarding the validity of the Disclaimer.
[38] I nevertheless share the opinion of Distrimedic to the effect that this notice of application for judicial review does not for the time being change the fact that there is no valid disclaimer now affecting the patent '045 claims. Regardless of the arguments that Richards Packaging could attempt to raise against this decision by the CIPO, and specifically, inter alia, the fact that, first, the CIPO would have no discretion with respect to any document filed and registered for a disclaimer pursuant to the Patent Act, supra, and that, second, the disclaimer process does not provide for the participation of any person wanting to oppose the registration of a disclaimer, it does not change the fact that as long as this Court has not allowed the application for judicial review by Richards Packaging, there is still no valid disclaimer.
[39] The fact that this Court gave leave to Distrimedic to be a respondent in that application for judicial review is not a valid ground preventing Distrimedic from advancing this point of view in the context of this docket T-1591-05.
[40] This plain and obvious finding of an absence of valid disclaimer is also not at all affected by the statements made in the case law regarding circumstances very different from ours (see Bayer Aktiengesellschaft and Bayer Inc. v. Pfizer Research and Development Co., N.V./S.A., order dated December 16, 2002, docket T-1964-02; Monsanto Co. v. Commissioner of Patents (1976), 28 C.P.R. (2d) 118 (F.C.A.); Canadian Celanese Ltd. v. B.V.D. Co. Ltd., [1937] 2 D.L.R. 481 (S.C.C.) and [1939] 2 D.L.R. 289 (Privy Council)).
[41] Accordingly, it is plain and obvious that the allegations of the defence reproduced above should be struck pursuant to paragraphs 221(1)(b) and (c) of the Rules since they are immaterial and frivolous. Accordingly, the order accompanying these reasons will provide that all of paragraph 13 as well as the text underlined above from paragraphs 14, 18(a), 18(c)(i) and 32 of the defence are struck pursuant to paragraphs 221(1)(b) and (c) of the Rules.
[42] The second order to strike sought by Distrimedic contemplates paragraph 16 of the defence. This paragraph 16 reads:
16. As to paragraphs 27 and 28 of the Amended Statement of Claim, at the date of commencement of the action by Statement of Claim dated September 26, 2005, the Plaintiff did not have an "article" pursuant to section 60(2) of the Patent Act as the DISTRIMEDIC Product was not in existence as admitted in paragraph 4 of the Statement of Claim as filed. Accordingly, the Plaintiff did not have the required interest to bring the present action and the Defendants request that the Amended Statement of Claim be dismissed with costs to the Defendant Richards Packaging.
[43] According to Distrimedic, this paragraph now represents no more than an academic question since between the time of Distrimedic's initial statement of claim, namely in September 2005, and the present time, Distrimedic did indeed manufacture a sample of the Distrimedic product and gave a copy of it to Richards Packaging and the latter has since filed the defence.
[44] Even though we could conceivably debate Distrimedic's interest in relying on subsection 60(2) of the Patent Act, supra, in September 2005, there is now no doubt that it has that interest and we must therefore determine that paragraph 16 of the defence does not at this time raise a valid defence. Accordingly, it is plain and obvious that this paragraph 16 must be struck pursuant to paragraph 221(1)(a) of the Rules.
[45] Finally, Distrimedic seeks in its motion an order to strike out a series of paragraphs in the defence, specifically, paragraphs contained in Richards Packaging's counterclaim (hereinafter collectively the defence), where Richards Packaging, relying on various key sections of the Trade-marks Act, R.S.C. 1985, c. T-13, as amended, is claiming various declaratory and injunctive relief.
[46] In support of these findings, Richards Packaging refers to paragraphs 30 (as it should read), 31 and 38 of its defence. These paragraphs read:
30. In at least 2005, Filiatrault and Poirier or their agents began approaching customers of the Defendant Richards Packaging (Plaintiff by Counterclaim) in the Province of Quebec indicating that they were Dispill. Filiatrault and Poirier or their agents also stated that they were going to be producing a product similar to the product covered by the Canadian Patent No. 2,207,045 and marketing it in the near future. The Defendants to the Counterclaim have hired former employees of the Defendant Richards Packaging (Plaintiff by Counterclaim) to assist them with the activities noted in paragraph 31. The identity of all persons to whom these representations were made and of all former employees hired is not known to the Defendant Richards Packaging (Plaintiff by Counterclaim) but is known to the Defendants to the Counterclaim.
31. The statements made by Filiatrault and Poirier or their agents contained false and misleading statements that tended to discredit the business, services and wares of the Defendant Richards Packaging (Plaintiff by Counterclaim) in order to promote the business interests of Filiatrault, Poirier and Distrimedic contrary to s. 52(1)(a) of the Competition Act since Filiatrault and Poirier are not Dispill nor agents of the Defendant Richards Packaging (Plaintiff by Counterclaim).
38. Since at least 2005, Distrimedic, Filiatrault and Poirier have, without the consent of the Defendant Richards Packaging (Plaintiff by Counterclaim), authorized the copying of the Dispill Label Form by pharmacies. An icon in the computer program for printing patient information onto a permanent container-sealing sheet or replaceable container-sealing sheet uses the word DISTRIMEDIC, however, when, as the Defendants to the Counterclaim instruct, a user clicks on such icon the Dispill Label Form appears. The patient information is then inputted and printed onto a Distrimedic container-sealing sheet.
[47] Even if we were to give a more than liberal interpretation to these paragraphs and to the Trade-marks Act, supra, I agree with Distrimedic in saying that it is plain and obvious that these paragraphs 30, 31 and 38 do not introduce any material fact tending to establish the use of the registered trade-mark DISPILL or tending to establish that the defendants by counterclaim sold, distributed or marketed merchandise or services in association with a trade-mark or a trade name creating confusion with the registered mark.
[48] The same applies to paragraphs 18(c)(v), 18(d)(vii), 45(iv) which rely on paragraph 7(c) of the Trade-marks Act. This paragraph, stating that no person shall pass off other wares or services as and for those ordered or requested, is a codification of the action at common law in "passing off by substitution" (see Fox, The Canadian Law of Trade-marks and Unfair Competition, 4th ed., Toronto, Ontario, Thomson Carswell, 2005, at pages 4-15).
[49] Accordingly, it is plain and obvious that the text of paragraphs 18(c)(iii), 18(c)(v), 18(c)(vi), the words in paragraph 18(d)(iii) that are underlined in the notice of motion, 18(d)(iv), 18(d)(vii), 18(d)(viii), 18(d)(ix), 45(i), 45(ii) and 45(iv) of the defence do not disclose any reasonable cause of action and will therefore be struck pursuant to paragraph 221(1)(a) of the Rules.
[50] In its written submissions submitted against the motion under review, Richards Packaging requested that all orders to strike allegations from the defence coincide with a right for Richards Packaging to amend its defence.
[51] Apart from the amendment that Richards Packaging could make to the existing text of paragraph 30 of the defence, I do not have any affidavit tending to establish that Richards Packaging has material facts that could validly sustain either of the struck allegations. Accordingly, I do not intend to allow this request by Richards Packaging.
[52] Since the success of this motion is divided, no costs will be awarded to either party.
[53] The order accompanying these reasons will also give a time limit for Richards Packaging to file an amended defence taking into account the amendment authorized at paragraph 30 of the current defence as well as the orders for particulars and orders to strike.
[54] Distrimedic will also be given a period of time to then file its reply and defence to counterclaim.
"Richard Morneau"
Montreal, Quebec
June 29, 2006
Certified true translation
Kelley A. Harvey, BCL, LLB
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