Master
Garfield:—
This
is
an
application
made
on
behalf
of
the
defendants
to
strike
out
certain
paragraphs
of
the
statement
of
claim
and
parts
of
other
paragraphs.
Re
paragraphs
13
-
21.
Counsel
for
the
applicants
argue
that
the
paragraphs
are
prolix,
irrelevant
and
embarrassing.
The
paragraphs
refer
to
correspondence
between
the
plaintiffs
through
their
solicitors
and
some
of
the
defendants,
employees
of
Her
Majesty
the
Queen
concerning
the
plaintiffs’
wish
to
be
shown
copies
of
the
authorization
and
approval
purportedly
issued
under
s.
231
of
The
Income
Tax
Act
(Canada).
The
paragraphs
further
allege
that
the
plaintiffs
were
not
able
to
obtain
from
the
defendants
or
from
the
Clerk
of
the
County
Court
of
Middlesex
“the
necessary
authority
to
approve
the
search”.
Paragraph
21
alleges
that
the
defendant,
R
W
Dal-
geish
admitted
that
the
defendants
did
not
have
a
copy
of
such
authority
to
approve
the
search.
See
Brydon
v
Brydon,
[1951]
OWN
369
at
370-1:
“Nor
are
the
rules
of
pleading
in
our
Courts
a
thing
of
darkness
and
mystery,
difficult
to
be
grasped
by
the
oridinary
mind,
and
based
upon
arbitrary
or
whimsical
principles.
These
principles
are
clear
and
simple
and
plain
common
sense.
The
pleadings
must
disclose
what
it
to
be
tried;
every
pleader
is
at
liberty
to
allege
any
fact
which
would
be
allowed
to
be
proved,
but
only
such
facts.”
The
test
is
not
whether
the
fact
is
a
major
or
a
minor
fact
or
a
chief
or
an
ancillary
one,
but
rather
whether
the
fact
pleaded
is
relevant
to
the
trial
of
the
issue.
As
further
stated
by
Riddell,
J
in
the
same
case,
citing
Rock
v
Pursell
(1887),
84
LT
Jo
45:
“Anything
which
can
have
any
effect
at
all
in
determining
the
rights
of
the
parties
can
be
proved,
and
consequently
can
be
pleaded
—
but
the
Court
will
not
allow
any
fact
to
be
alleged
which
is
wholly
immaterial
and
can
have
no
effect
upon
the
result.”
See
also
Everdale
Place
v
Rimmer
et
al
(1975),
8
OR
(2d)
641
at
643:
.
.
.
However,
when
that
pleading
raises
an
issue,
the
determination
of
which
can
have
no
effect
upon
the
outcome
of
the
action,
such
pleading
is
embarrassing
and
should
be
struck
out.
In
the
instance
case,
all
those
paragraphs
raise
issues
that
can
and
will
affect
the
outcome
of
the
trial.
The
facts
set
out
in
the
paragraphs
are
provable
and
relevant
so
as
to
negate
the
argument
of
counsellor
the
applicants
that
the
paragraphs
are
irrelevant
and
embarrassing.
Paragraphs
22
-
5.
These
paragraphs,
do
indeed,
as
submitted
by
counsel
for
the
applicants
refer
to
earlier
proceedings
and
paragraph
24
specifically
refers
to
a
settlement
between
the
parties
and
an
admission
by
one
of
the
defendants,
I
S
MacGregor
and
therefore
should
not
be
considered
as
a
proper
pleading.
But
again,
these
are
facts
that
provable
and
can
be
considered
relevant
to
the
issue
of
exemplary
damages
and
accordingly
should
remain.
Paragraph
7.
“without
colour
of
right"
is
a
legal
conclusion
but
is
supported
by
facts,
particularly
those
set
out
in
paragraph
16
as
to
the
legality
of
the
purported
search
and
seizure.
Paragraphs
12
and
26.
The
use
of
“high
handed”
and
“officious”
described
in
these
paragraphs
are
descriptive
and
are
supported
by
the
facts
relating
to
the
claim
for
punitive
damages.
In
the
results,
the
application
is
dismissed
and
the
applicants/defendants
shall
have
fourteen
days
from
the
entry
of
the
order
to
deliver
their
statements
of
defence.
Costs
shall
be
the
plaintiffs
in
the
cause.
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