T-428-97
MONTREAL, QUEBEC, THIS 27th DAY OF AUGUST 1997
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
BETWEEN:
NO FEAR, INC.
Plaintiff
AND
ALMO-DANTE MFG. (CANADA) LTD.
Defendant
ORDER
The motion by the defendant for further and better particulars is denied. Costs in the cause.
Richard Morneau
Prothonotary
T-428-97
BETWEEN:
NO FEAR, INC.
Plaintiff
AND
ALMO-DANTE MFG. (CANADA) LTD.
Defendant
REASONS FOR ORDER
RICHARD MORNEAU, ESQ.,
PROTHONOTARY:
This motion, in a trade marks and copyright infringement action, is brought by the defendant under subsection 415(3) of the Federal Court Rules (the rules) for an order directing the plaintiff to provide further and better particulars of certain paragraphs of its statement of claim. Both parties are involved in the manufacturing and sale of wearing apparel products.
The law in respect of particulars
Before making an order in respect of particulars, the Court must evaluate whether a party has enough information to be able to understand the other party's position and to prepare a responsive answer, be it a defence or a reply. (See Astra Aktiebolag v. Inflazyme Pharmaceuticals Inc. (1995), 61 C.P.R. (3d) 178 (F.C.T.D.), at 184.)
In Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al. (1979), 43 C.P.R. (2d) (F.C.T.D.), at page 287, Marceau J. stated the extent to which the defendant is entitled to be furnished with particulars of the plaintiff's case at the pleading stage:
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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. |
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In its notice of motion, the defendant states that the plaintiff in the statement of claim "has failed to provide the material facts and the necessary particulars of its allegations of material facts, contrary to rule 408 (1) and 415 (1); and has failed to plead all the facts and matters in support of its claims and that might take the Defendant by surprise, all of which are necessary for the Defendant to prepare its defence". It must be recalled, with respect to that allegation, that the purpose of a motion for particulars is not the same as an examination for discovery of the other party, and that the purpose of such a motion, as stated in Embee, supra, is not necessarily to enable the defendant to know all the facts on which the action is based. In Quality Goods I.M.D. Inc. v. R.S.M. International Active Wear Inc. (1995), 63 C.P.R. (3d) 499 (F.C.T.D.), Dubé J. of this Court, himself citing Embee, referred precisely to this distinction, as follows:
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At discovery a party is entitled to be informed of any and every particular which will enable it to prepare its case for trial. However, before the filing of its defence the defendant is only entitled to particulars which are necessary for filing its defence. A request for particulars before defence ought not to be a fishing expedition and in any event is not as broad as discovery.1 |
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1 Embee Electronic Agencies v. Agence Sherwood Agencies Inc. (1979), 43 C.P.R. (2d) 285. |
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Analysis
I am of the view that none of the particulars requested by the defendant are necessary for it to reply intelligently to the statement of claim and state properly the grounds of defence on which it intends to rely. The statement of claim at bar, in my opinion, provides the defendant with sufficient particulars to enable it to understand the position of the plaintiff and to appreciate the facts on which it is founded.
This motion, therefore, shall be denied. An order will be issued in accordance with these reasons.
Richard Morneau
Prothonotary
Montreal, Quebec
August 27, 1997
T-428-97
NO FEAR, INC.
Plaintiff
ALMO-DANTE MFG. (CANADA) LTD.
Defendant
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-428-97
NO FEAR, INC.
Plaintiff
AND
ALMO-DANTE MFG. (CANADA) LTD.
Defendant
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:August 25, 1997
REASONS FOR ORDER BY:Richard Morneau, Esq.,
Prothonotary
DATE OF REASONS FOR ORDER:August 27, 1997
APPEARANCES:
Mr. Michael A. Holowack for the Plaintiff
Mr. Harold W. Ashenmil, Q.C. for the Defendant
SOLICITORS OF RECORD:
Mr. Michael A. Holowack for the Plaintiff
Gowling, Strathy & Henderson
Ottawa, Ontario
Mr. Harold W. Ashenmil, Q.C. for the Defendant
Phillips, Friedman, Kotler
Montreal, Quebec
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