Date: 20051221
Docket: T-157-05
Citation: 2005 FC 1678
BETWEEN:
NAV CANADA
Plaintiff
- and -
ADACEL TECHNOLOGIES LIMITED,
ADACEL INC. and CAE INC.
Defendants
REASONS FOR ORDER
PINARD J.:
[1] This is an appeal by the defendants from a discretionary decision dismissing their motions for particulars, a decision which was made by Prothonotary Aronovitch on September 28, 2005, in the exercise of her powers as the Case Management Prothonotary assigned to these proceedings.
[2] Upon hearing counsel for the parties and upon reading the material filed, I am not prepared to conduct a de novo review of the merits of the impugned decision and to consider exercising my own discretion differently for the following reasons:
1. The defendants have failed to demonstrate that the Prothonotary's decision is "clearly wrong", in that it was based upon an incorrect principle of law or misapprehension of the facts, or that the question raised is vital to the "final issue" in the case (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at 454 (C.A.)); furthermore,
2. the defendants have manifestly failed to meet the heavy burden of demonstrating that the Prothonotary's interlocutory decision represents the "clearest case of a misuse of judicial discretion" (see Sawridge Band v. Canada, [2002] 2 F.C. 346 at 354 (C.A.)).
[3] With minor exceptions, the Notices of Motions for Particulars of the defendants were identical, as were the affidavits upon which they were based and the submissions they made.
[4] In dismissing the defendants' motions for particulars, Prothonotary Aronovitch gave the following reasons:
In dismissing the defendants' motion, I concur with and adopt as my own the submissions of the plaintiff, generally at paragraphs 1 to 10, and with respect to the specific items sought, at paragraphs 11 to 34 of the same submissions.
The defendants are at the stage of having to plead in response to the plaintiff's claim. They have provided no evidentiary or other basis to conclude that these particulars are required and necessary to enable the defendants to plead in defence.
The defendants maintain that no such evidence is necessary as the pleadings are evidently deficient. I agree that pleadings that are, on their face, insufficient in the facts alleged may be required to be particularized or indeed may be struck-out on that basis. That is not however, the case in this instance. The paragraphs of the claim that are impugned by the defendants are fulsome, with sufficient material facts alleged to support the plaintiff's cause of action. I find no open-ended pleading and no evidently insufficient pleadings that require to be particularized much less struck-out.
Indeed, much of what the defendants seek, in my view, are matters that are properly explored at discovery. The questions are proper for that purpose, in that venue, and not for the purposes of pleading. The information and documents at issue are neither properly sought nor given at this stage. In sum, I find that the pleadings, on their face, are not deficient, do not require to be further particularized, and that the defendants are in a position to plead adequately in defence.
[5] Concerning the defendants' first argument that the Prothonotary failed to apply correct principles in considering the demand for particulars regarding the manner in which NAV CANADA acquired from the Minister of Transport copyright in the "Gander Automated Air Traffic System" software, it is dismissed on the basis of paragraphs 6 to 12 of the plaintiff's Written Submissions in response to the defendants' appeal of the Prothonotary's decision.
[6] Concerning the defendants' second argument that the Prothonotary failed to recognize that the plaintiff must state the facts upon which its allegations are based, it is dismissed on the basis of paragraphs 13 to 18 of the plaintiff's Written Submissions in response to the defendants' appeal of the Prothonotary's decision.
[7] Concerning the defendants' third and final argument that they did not need to rely upon the affidavits they had filed in support of their appeal because the need for particulars was clear on the face of the pleadings, it is dismissed on the basis of paragraphs 19 to 21 of the plaintiff's Written Submissions in response to the defendants' appeal of the Prothonotary's decision.
[8] Consequently, the motion is dismissed, with costs. Accordingly, the period of time within which the defendants were ordered by the Prothonotary to serve and file their statements of defence shall start from the date of the Order rendered with these Reasons.
[9] The periods of time within which the parties were permitted by the Prothonotary to make brief submissions concerning costs of the motion before her shall be calculated taking into account that the first delay of seven (7) days granted to the plaintiff will start from the date of the Order rendered with these Reasons.
JUDGE
OTTAWA, ONTARIO
December 21, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-157-05
STYLE OF CAUSE: NAV CANADA v. ADACEL TECHNOLOGIES LIMITED, ADACEL INC. and CAE INC.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 5, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATED: December 21, 2005
APPEARANCES:
Mr. Bruce Carr-Harris
Mr. Jean-Sébastien Gallant FOR THE PLAINTIFF
Mr. François Guay FOR THE DEFENDANT CAE INC.
Mr. Dominic Desjarlais FOR THE DEFENDANTS ADACEL TECHNOLOGIES LIMITED AND ADACEL INC.
SOLICITORS OF RECORD:
BORDEN LADNER GERVAIS FOR THE PLAINTIFF
Ottawa, Ontario
SMART & BIGGAR FOR THE DEFENDANT CAE INC.
Montréal, Quebec
LAMARRE LINTEAU & MONTCALM FOR THE DEFENDANTS ADACEL
Montréal, Quebec TECHNOLOGIES LIMITED AND ADACEL INC.
Date: 20051221
Docket: T-157-05
Ottawa, Ontario, this 21st day of December 2005
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN:
NAV CANADA
Plaintiff
- and -
ADACEL TECHNOLOGIES LIMITED,
ADACEL INC. and CAE INC.
Defendants
ORDER
The defendants' motion for an Order setting aside the decision of Prothonotary Aronovitch dated September 28, 2005, which dismissed, in their entirety, the defendants' motions for particulars, production of specified documents, and to strike, if particulars were not produced, is dismissed, with costs.
The period of time within which the defendants were ordered by the Prothonotary to serve and file their statements of defence shall start from the date of this Order.
Page: 2
The periods of time within which the parties were permitted by the Prothonotary to make brief submissions concerning costs of the motion before her shall be calculated taking into account that the first delay of seven (7) days granted to the plaintiff will start from the date of this Order.
JUDGE
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