Date: 19980930
Docket: T-668-96
BETWEEN:
MIL-DAVIE INC.
Plaintiff
- and -
HIBERNIA MANAGEMENT AND
DEVELOPMENT COMPANY LTD.
Defendant
REASONS FOR ORDER
(Delivered from the Bench at St. John"s, NFLD,
Wednesday, September 30, 1998)
HUGESSEN J.
[1] This is a motion to strike certain paragraphs of the statement of claim. The matter has already been once to the Court of Appeal which found that the plaintiff"s statement of claim does assert a claim which is within the jurisdiction of this Court and may reasonably be sustained as a claim for a conspiracy to breach certain provisions of the Competition Act1 and for the damages resulting therefrom. It is important to bear in mind that the claim is one for conspiracy because the rules of evidence with respect to conspiracies are somewhat broader and more complex than for the ordinary run of the civil case. In particular, a plaintiff who alleges a conspiracy is entitled to put into evidence any acts or declarations of any of the co-conspirators which are in furtherance of the alleged conspiracy. That being so, it appears to me that such acts and declarations are necessarily material facts and may be pleaded as such. I have read the plaintiff"s statement of claim with that in mind.
[2] That being said, however, it seems clear to me that the alleged conspiracy had, for its object, the refusal of the defendant to allow the plaintiff to submit a bid to complete the work on a contract which had originally been given by the defendant to Vineland and which the latter had been unable to complete. That work was instead given by the defendant to St. John Ship Building Limited, an alleged co-conspirator, which had not bid on the contract, whereas the plaintiff had.
[3] All that being said, it appears to me that the following paragraphs of the statement of claim are immaterial and should be struck. Paragraphs 5 through 10 inclusive which simply contain background material which is not necessary to be pleaded and is irrelevant. Paragraphs 17 and 18, which contain simple hyperbole and which are not relevant to the material issues herein. Paragraphs 30 through 47 inclusive are irrelevant with the exception of paragraphs 35 and 36 which may remain in. Paragraphs 55 to 61, paragraph 67, paragraph 85 and all that part of paragraph 90 which refers to copies of the letter therein referred to being sent persons other than the defendant. Paragraphs 100 to 102 inclusive are immaterial and paragraphs 112 subparagraph (b), paragraphs 119 and 120 and paragraph 133 subparagraphs (a) and (b) are also to be struck.
[4] I will now turn to the second part of the motion which seeks particulars with regard to the statement of claim and which, of course, need only address those paragraphs which have remained in.
[5] (Later) With respect to the request for particulars, counsel have now discussed the matter and have come to an agreement on all matters other than paragraphs 126 and 127 and in the course of the hearing before me, they have reached substantial agreement on those two paragraphs as well. There will accordingly be an order with respect to paragraph 126 requiring plaintiff to identify the market or markets, in which the alleged conspiracy was to restrain competition and with respect to paragraph 127, to identify the source and nature of the alleged fiduciary relationship.
[6] An order will go in the foregoing terms. Costs to be in the cause.
"James K. Hugessen"
Judge
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1 R.S.C. 1985, ch. C-34
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