Date:
20051101
Docket:
T-937-05
Citation:
2005 FC 1478
Montréal, Quebec, the 1st day of
November, 2005
PRESENT: RICHARD MORNEAU,
PROTHONOTARY
BETWEEN:
FIELDTURF
INC.
Plaintiff/
Defendant
to counterclaim
and
TRIEXE
MANAGEMENT GROUP INC.
and
LES
INSTALLATIONS SPORTIVES DEFARGO INC.
Defendants/
Plaintiffs
by counterclaim
REASONS
FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1]
This case involves two motions
by the plaintiff and defendant to counterclaim (the plaintiff) pursuant to
section 174 and subsection 181(2) of the Federal Courts Rules (the
Rules) to order the defendants and plaintiffs by counterclaim (defendant Triexe
and defendant Defargo) to provide it with further and better particulars on
certain paragraphs of their respective defences and counterclaims.
Legal Rules Concerning Particulars
[2]
The standards to be met by pleadings in terms of particulars are set out
in section 174 and subsection 181(2) of the Rules, which read as follows:
|
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 .
|
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) On motion, the Court
may order a party to serve and file further and better particulars of any
allegation in its pleading.
[Emphasis
added]
|
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.
[Non
souligné dans l’original.]
|
[3]
In Glaxo Canada Inc. v. Department
of National Health and Welfare of Government of Canada et al. (1987), 15
C.P.R. (3d) 1 (F.C.T.D.), at page 10, Rouleau J. makes the following comment
concerning the standard in terms of 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.
[4]
However, any request for
particulars also appears to be subject to certain restrictions. In short,
before making an order on the matter, the Court must consider whether a party
has enough information to understand the opposing party’s position and prepare an effective response,
whether it be a defence or a reply. (See Astra Aktiebolag v. Inflazyme
Pharmaceuticals Inc. (1995), 61 C.P.R. (3d) 178 (F.C.T.D) at page 184.)
[5]
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, Marceau J. explains
the extent to which the defendant is entitled to obtain, at the pleadings
stage, details concerning the evidence of the plaintiff. In my view, the
following comments by Marceau J. may be applicable, with the necessary
adjustments, to the request for particulars by the plaintiff concerning the
disputed defences:
At that early stage, a 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.]
[6]
Here, moreover, since the affidavit submitted by the plaintiff in
support of each of its motions is extremely brief and was prepared by one of
its own lawyers, the requirements in terms of particulars will have to be
assessed from a reading of the respective defences themselves. In fact, as the
Court noted at page 522 of Covington Fabrics Corp. v. Master Fabrics Ltd.
(1993), 48 C.P.R. (3d) 521:
The absence of a request and of an affidavit setting out with
some particularity what particulars are required can be waived if the need for
particulars is obvious from the file. That the party cannot plead without the
particular might also be obvious from the file and that the party does not have
the particulars might be assumed in a proper case.
(See also Omark Industries Inc.
v. Windsor Machine Co. Ltd. (1980), 56 C.P.R. (2d) 111, page 112, at the
bottom of the page.)
[7]
Applying the principles set out above, it will be sufficient for the
defendants Triexe and Defargo to file within fifteen (15) days of these Reasons
for Order and Order the following particulars respectively:
- Concerning Defargo’s
Defence
1. With
respect to paragraph 11 of the Statement of Defence:
(a) During which period did the Defendant’s website contain the
text cited at paragraph 15.2 of the Statement of Claim?
2. With
respect to paragraph 17 of the Statement of Defence:
(a) When was it found that the use of cryogenic rubber did not
provide an appreciable advantage?
3. With
respect to paragraph 18 of the Statement of Defence:
(a) When was the decision made?
(b) Who made the decision?
4. With
respect to paragraph 19 of the Statement of Defence:
(a) For each potential client, including those specified at
paragraph 17 of the Amended Statement of Claim, how did Defargo inform them
that it was going to use ambient rubber?
(b) Which individual at Defargo transmitted that information to
the potential clients?
The other
details requested by the plaintiff need not be filed. In view of the divided
outcome, no costs are awarded.
- Concerning Triexe’s
Defence
1. With
respect to paragraph 11 of the Statement of Defence:
(a) During which period did Sportexe make a brochure, containing
the text cited at paragraph 15.3 of Plaintiff’s Amended Statement of Claim,
available to the public?
2. With
respect to paragraph 17 of the Statement of Defence:
(a) When was it found that the use of cryogenic rubber did not
provide an appreciable advantage?
3. With
respect to paragraph 18 of the Statement of Defence:
(a) For each potential client, including those specified at
paragraph 17 of the Amended Statement of Claim, how did Defargo inform them
that it was going to use ambient rubber?
(b) Which individual at Defargo transmitted that information to
the potential clients?
The other
particulars requested by the plaintiff need not be filed. In view of the
divided outcome, no costs are awarded.
[8]
Concerning the plaintiff’s request for an extension of time, the
plaintiff shall serve and file its response and defence by counterclaim within
twenty (20) days of the filing of the particulars authorized above.
|
|
“Richard
Morneau”
|
|
|
Prothonotary
|
Certified true translation
Michael Palles
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET:
STYLE OF CAUSE:
T-937-05
FIELDTURF INC. v. TRIEXE
MANAGEMENT GROUP INC. and LES INSTALLATIONS SPORTIVES DEFARGO INC.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 24, 2005
REASONS FOR ORDER BY: Richard Morneau, Prothonotary
DATED: November
1, 2005
APPEARANCES:
|
Nancy Bishai
|
|
FOR THE PLAINTIFF/DEFENDANT TO
COUNTERCLAIM
|
|
|
|
|
|
Pascal Lauzon
|
|
FOR THE DEFENDANTS/PLAINTIFFS
BY COUNTERCLAIM
|
|
|
|
|
|
SPIEGEL SOHMER
Montréal, Quebec
|
|
FOR THE PLAINTIFF/DEFENDANT TO
COUNTERCLAIM
|
|
|
|
|
|
BCF, LLP
Montréal, Quebec
|
|
FOR THE DEFENDANTS/PLAINTIFFS
BY COUNTERCLAIM
|
Email this Content