[1] These reasons arise out of a motion for particulars of the counterclaim of the Defendant, for a further and better affidavit of documents, together with inspection and to allow an amended Statement of Claim. Here I would note that the Plaintiff has already filed a defence to the counterclaim and that discoveries were pending at the time this motion was heard. At issue is the Plaintiff's patent sawmilling equipment, which allows curve sawing of logs to maximize marketable lumber recovery.
CONSIDERATION
Amended Statement of Claim
[2] The issue as to the filing of an amended Statement of Claim is adjourned and, if not agreed upon, should be dealt with by a case management prothonotary or judge.
Further Affidavit of Documents
[3] The request for a further and better affidavit of documents is not, except perhaps as to a software source code which allows the curved sawing of logs, at issue at this time, since the Defendant has agreed to search for and deliver a further affidavit of documents, to be reviewed by the Plaintiff, this of course without prejudice to the Plaintiff renewing its request for documents.
[4] As to the further production of documents, the Defendant has agreed to that, the only issue being the time required. To the extent that a further affidavit of documents has not been provided in the interim, since the hearing of this motion, the Defendant shall have fourteen days within which to serve the further affidavit of documents. Of course the Plaintiff may, once it has considered the further affidavit and obtained inspection, applying for further documents. This particularly applies to the production of the computer source code, which in some installations enables curved sawing to take place, although here I would note in passing and without making any determination that, on the present material, there may be insufficient information to make a ruling. The Plaintiff's position is that the deponent of one of the Plaintiff's affidavits in support of this motion, Brian Stroud, says that he would expect the Defendant has a copy of the source code in its possession, or the ability to obtain that information. However the response of the Defendant is that the source code does not belong to the Defendant, but to an independent entity, USNR/Percerptron, which holds the copyright, with the Defendant having no copy of the source code in its possession. If this aspect of production of documents cannot be resolved by agreement, I would note that the party requesting documents must have persuasive evidence that the documents are available and this requires more than speculation, intuition and guesswork:
However the Defendants, in pressing for further documents through cross-examination on Affidavits of Documents, must have some persuasive evidence that documents are available, but have not been produced, rather than mere speculation, intuition and guesswork.
[Havana House Cigar & Tobacco Merchants Ltd. v. Naeini (1998) 80 C.P.R. (3d) 132 at 140, affirmed (1998) 80 C.P.R. (3d) 563]
This principle applies not only in the case of cross-examination on an affidavit of documents, but also in the case of a motion for production of a specified document.
Particulars
[5] Key to these reasons is that it is unusual to order particulars, other than for trial, after pleadings have been closed and with either the examinations for discovery in the offing or taking place: particulars are usually ordered either at an early stage for the purpose of understanding claims and drafting pleadings, or much later when a party has a bona fide need for broader particulars, leading up to a trial, if that party still does not understand a claim or defence. Before turning to the case law I would note that several days before this motion was heard the Defendant voluntarily provided answers to a number of the requested particulars, however I do not take this as a waiver of any argument that the Defendant might normally have as to providing particulars at this point.
[6] There has always been a distinction between particulars needed in order to respond to a pleading and particulars required in order to understand the case before trial. This is set out in CAT Productions v. Macedo (1984) 1 C.P.R. (3d) 517 (F.C.T.D.) at 519-520:
Courts have drawn a distinction between particulars required before pleading and those required before trial. The purpose of particulars required to be delivered before pleading is for the intelligent pleading by the opposite party. As to particulars before trial, a party is generally entitled to any particulars required to properly prepare his case for trial.
Particulars for pleading are always much narrower than particulars for trial, for in the former instance a party need only have enough particulars to understand and respond to a pleading, while in the latter situation it is important that a party be able to flesh out his or her understanding of the case, in effect picking up any loose ends which have been left over from discovery of documents and examination for discovery.
[7] As noted earlier a full response to a pleading generally precludes a party from requesting particulars, except where the particulars are needed for trial. The point at which to begin is the observation of Mr. Justice Addy in Caterpillar Tractor Co. v. Babcock Allatt Ltd. [1983] 1 F.C. 487 at 490:
Generally speaking, where a party pleads in full reply and rebuttal to a pleading of the opposite party, he is precluded from objecting to the other party's pleading or requesting particulars for the purpose of pleading further at a later date. (See Dominion Sugar Co. v. Newman [(1917-18), 13 O.W.N. 38 (H.C.J.)] and Montreuil v. The Queen [[1976] 1 F.C. 528 (T.D.)]
[8] Quite properly counsel for the Defendant brought to my attention Ciba-Geigy v. National Contact (1992) 53 F.T.R. 238 (F.C.T.D.), a decision of Mr. Justice Strayer, as he then was, that case pointing out that the rule against particulars after pleading over is not absolute:
I recognize that it is quite unusual to order particulars in favour of a defendant who has already filed a statement of defence [See e.g. Caterpillar Tractor Co. v. Babcock Allatt Ltd. (1982) 67 C.P.R.(2d) 135 at 137 (F.C.T.D.), and cases referred to therein.], but it is not unknown [See e.g. Addison-Wesley Publishing Ltd. et al. v. Kinko's Copies Canada Ltd. (1987) 18 C.P.R.(3d) 121 (F.C.T.D.).]. In the present case I believe it is in the interests of the administration of justice that both parties better particularize their positions, in order that the issues may be narrowed and more clearly defined by the pleadings and that time and expense be saved in discoveries, preparation for trial, and the trial.
[p. 239]
In Ciba-Geigy Mr. Justice Strayer was most concerned as to both a lack of particulars and of detailed pleading by both sides: he felt that it was "... a situation which cries out for improvement by the provision of better particulars or more detailed pleading by both sides." (loc cit.).
[9] In the present situation three factors mitigate against ignoring the general rule against particulars once the party has responded to a pleading. First, the present situation does not cry out for particulars at this stage. Second, the Defendant has voluntarily provided some further written particulars of the counterclaim. Third, one cannot ignore the scheduled discoveries as an appropriate means of exploring the case, in effect providing the function of obtaining the sort of particulars for trial referred to by the Federal Court of Appeal in The Mary Mackin [1984] 1 F.C. 884 at 889.
CONCLUSION
[10] Further particulars are refused, of course without prejudice to the Plaintiff, following examinations for discovery, bringing a new application for particulars for the purpose of trial.
[11] Costs normally follow the event. The Plaintiff has been unsuccessful as to further particulars. However, other aspects of the motion have been adjourned. It will therefore be for the case management prothonotary or judge hearing the continuation of this motion to determine overall costs.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1546-03
STYLE OF CAUSE: Coe Newnes McGehee ULC
- and -
Valley Machine Works Ltd.
PLACE OF HEARING: Vancouver
DATE OF HEARING: January 24, 2005
REASONS FOR ORDER : HARGRAVE, P.
DATED: May 12, 2005
APPEARANCES:
Mr. David M. Rush FOR PLAINTIFF
Mr. Andrew McIntosh ACTING AS AGENT FOR DEFENDANT
SOLICITORS OF RECORD:
Petraroia, Langord, Edwards & Rush FOR PLAINTIFF
(Vancouver)
Patterson Palmer FOR DEFENDANT
(Fredericton)
Bereskin Parr ACTING AS AGENT FOR
(Toronto) DEFENDANT
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