Date:
20130121
Docket:
T-1710-12
Citation:
2013 FC 50
Toronto, Ontario,
January 21, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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MONSANTO CANADA INC. AND
MONSANTO COMPANY
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Plaintiffs
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and
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DOUG VAN VERDEGEM
AND BAR V FARMS LTD.
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Defendants
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REASONS FOR ORDER AND
ORDER
[1]
The
Plaintiffs have brought a motion for default judgment. The evidence before me
indicates that the Defendants have been properly served and that no Defence or
other document has been filed by the Defendants. It is therefore appropriate
that the Plaintiffs may move for default judgment under Rule 210.
[2]
Rule
210(3) requires that a motion for default judgment be supported by affidavit
evidence. In this case, the Plaintiffs have provided only affidavits of service.
No affidavit directed to the substance of the claim has been filed. Instead,
the Plaintiffs served a Request to Admit on the Defendants under Rule 255. Such
a Request may be served after pleadings are closed. Rule 202(a) provides that
pleadings are closed if no Defence has been filed within the time limits
provided. That is the case here; pleadings are closed, thus a Request to Admit
may be served.
[3]
The
Defendants have provided no response to the Request to Admit. Rule 256 provides
that if no response to the Request has been made within the time limits
provided, the party upon whom the Request has been served is deemed to have
admitted the facts set out in the Request. Here the Defendants were properly
served; the time limits have passed. No answer has been provided; thus, the
Defendants are deemed to have admitted the facts set out in the Request.
[4]
The
action is for patent infringement. The patent is directed to genetic material
found in plant seeds. The Defendants are alleged to have signed a licence with
and obtained patented seeds from the Plaintiffs. It is alleged that the licence
permits the Defendants to grow one crop, not to save seeds, and not to replant
a new crop from those seeds. It is alleged that the Defendants, notwithstanding
the terms of the licence, saved seeds and planted a crop containing the
patented gene. The Plaintiffs want an injunction, damages, and punitive
damages.
[5]
The
Plaintiffs argue that while on a motion for default the Court cannot simply
accept the allegations made in the Statement of Claim as true, the unanswered
Request to Admit contains the facts necessary to support the allegations made
in the Statement of Claim and are deemed to have been admitted by the
Defendants.
[6]
I
am sceptical of such an attempt to “bootstrap” the requirement to provide the
necessary evidence to support a default judgment by procedural manoeuvring.
While it is true that, particularly in contested proceedings, the Request to
Admit process is useful in eliminating the need to prove certain facts, I am
satisfied that such a Request cannot be a substitute for affidavit evidence
required on a motion for default judgment. Rule 210(3) states that a motion for
default judgment shall be supported by affidavit evidence which evidence, in
the context of the Rules, I take to be directed to the substance of the claim
and not just an affidavit of service. I agree that the Court might even have
discretion in respect of certain of the practice and procedural provisions of
the Rules. In this case, because there is no affidavit evidence, whatsoever, to
support the allegations in the Statement of Claim, I will not exercise any
discretion, even if I have it, to accept the unanswered Request to Admit in
lieu of such affidavit evidence.
[7]
I
will, therefore, dismiss the motion for default judgment without prejudice to a
further motion based on proper affidavit evidence given that the Defendants are
in default of filing a Defence.
ORDER
FOR
THE REASONS THAT FOLLOW:
THIS
COURT ORDERS that:
1.
The
motion is dismissed without prejudice to a further motion supported by proper
affidavit evidence; and
2.
No
Order as to costs.
“Roger
T. Hughes”
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