Columbia Pictures Industries Inc. v. Caron, 2001 FCT 987

Date: 20010904

Docket: T-79-01

Neutral citation: 2001 FCT 987

BETWEEN:

COLUMBIA PICTURES INDUSTRIES, INC.,

DISNEY ENTERPRISES, INC.,

METRO-GOLDWYN-MAYER STUDIOS INC.,

PARAMOUNT PICTURES CORPORATION,

TRISTAR PICTURES, INC.,

TWENTIETH CENTURY FOX FILM CORPORATION,

UNITED ARTISTS CORPORATION,

UNITED ARTISTS PICTURES INC.,

UNIVERSAL CITY STUDIOS, INC.,

WARNER BROS., a division of

TIME WARNER ENTERTAINMENT CO., L.P.

                                                                                                                                                        Plaintiffs

                                                                                 and

                                                STÉPHANE CARON, doing business as

                                                "MARCHÉ AUX PUCES CHEZ DAN"

                                                                and MARIO CARON

                                                                                                                                                    Defendants

                                                            REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY

[1]                 As ordered by Lemieux J. of this Court on August 10, 2001 ("the August 10, 2001 order"), these reasons and the order accompanying them are to reconsider the motion for particulars filed by the defendants on March 7, 2001 and directed against several paragraphs of the plaintiffs' statement of claim.

[2]                 In the August 10, 2001 order, the Court asked that this reconsideration of my order of April 23, 2001 be undertaken in accordance with the principles which it laid down earlier in its decision.

[3]                 I conclude that these principles are those stated by the Court in paras. [11] and [12] of its reasons of August 10, 2001. Those paragraphs read as follows:

[11]          The following principles have been laid down in the decided cases:

(1)           In Caterpillar Tractor Co. v. Babcock Allatt Limited, [1983] 1 F.C. 487, Addy J. wrote the following at 490:

Generally speaking, where a party pleads in full reply and rebuttal to a pleading of the opposite party, he is precluded from objecting to the other party's pleading or requesting particulars for the purpose of pleading further at a later date.

                (2)           However, in the proper circumstances the Court, at a defendant's request, may order particulars of allegations contained in a plaintiff's statement of claim after a defence has been served and filed (see Ciba-Geigy Canada Ltd. v. National Contact To Go Ltd. (1992), 41 C.P.R. (3d) 131 and Addison-Wesley Publishing Ltd. et al. v. Kinko's Copies Canada Ltd. (1987), 18 C.P.R. (3d) 121);

                (3)           The Court will grant such a motion if it appears to the judge or the prothonotary that it is in the interests of justice to do so in order to define the point at issue more clearly and facilitate the conduct of the examination for discovery.

CONCLUSION

[12]         The prothonotary's decision was very brief and is open to interpretation. First, it may be the prothonotary decided that he had no discretion to grant the defendants' motion for particulars: if that is so, the prothonotary made an error of law. Second, the prothonotary may have decided that in the particular circumstances before him there was no reason to justify granting the motion for particulars: if that was so, I cannot intervene.

[4]                 For reference purposes, the prothonotary's decision to which the Court referred is that which I rendered on April 23, 2001 and which reads as follows:

[TRANSLATION]

In view of the order by this Court on March 21, 2001 and the filing of the defendants' defence on March 30, 2001, this motion has become null and is dismissed: costs to follow.

[5]                 I think the following passage from p. 133 of Ciba-Geigy Canada Ltd. v. National Contact To Go Ltd., cited supra by the Court in its August 10, 2001 order, precisely identifies the test which the Court wishes to see applied in the case at bar:

I recognize that it is quite unusual to order particulars in favour of a defendant who has already filed a statement of defence (see, e.g. Caterpillar Tractor Co. v. Babcock Allatt Ltd. (1982), 67 C.P.R. (2d) 135 at p. 137, [1983] 1 F.C. 487 (T.D.), and cases referred to therein), but it is not unknown: see, e.g., Addison Wesley Publishing Ltd. et al. v. Kinko's Copies Canada Ltd. (1987), 18 C.P.R. (3d) 121, 17 C.I.P.R. 253 (F.C.T.D.). In the present case I believe it is in the interests of the administration of justice that both parties better particularize their positions, in order that the issues may be narrowed and more clearly defined by the pleadings and that time and expense be saved in discoveries, preparation for trial, and the trial.

[6]                 In the case at bar the Court concurred in the plaintiffs' submissions that the particulars sought by the defendants were of the following kind:

4.             The requested particulars seek the identity of authorized licensees (16, 17 and 19), the particularity of the method of revenues received by the Plaintiffs from pay-per-view licencing (18), and particulars of the periods in which the Defendants are alleged to have offered for sale and sold pirate cable box decoders (12, 13, 35 and 36).

5.             The Defendants' motion for particulars goes so far as to request particulars of the profits they themselves made from the activities complained of (42).

[7]                 On reflection, I do not intend to allow the defendants' motion for particulars since in my opinion I am not persuaded that the interests of justice would be served by allowing these particulars, in whole or in part, at this stage. In other words, I am not persuaded that the particulars sought would in this case meet a need to more clearly define the issues or facilitate the examinations for discovery and future trial in terms of time and expense.

[8]                 The defendants' motion for particulars will accordingly be dismissed: costs to follow.

[9]                 Additionally, I would take the liberty of adding here that even if, in view of para. 21 of the defendants' defence, I had reviewed the defendants' motion on the basis that the motion was also in the nature of a motion for particulars before defence, I would still have dismissed it since it must be borne in mind that before making an order for particulars in such circumstances the Court must consider whether a party has enough information to understand the opposing party's position and prepare a responsive answer, whether 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.)

[10]            In Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al. (1979), 43 C.P.R. (2d) 285 (F.C.T.D.), at 287, Marceau J.A. explained the extent to which a defendant is entitled to particulars about the plaintiff's evidence at the pleadings stage:

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.

[Emphasis added.]

[11]            The purpose of a motion for particulars is not the same as that of an examination for discovery of the opposing party, and as indicated in Embee, supra, the purpose of such a motion 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, who also referred to Embee, set out the distinction very precisely in the following words:

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.

(Reference omitted)

Montréal, Quebec

September 4, 2001

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE:

STYLE OF CAUSE:

T-79-01

COLUMBIA PICTURES INDUSTRIES, INC.,

DISNEY ENTERPRISES, INC.,

METRO-GOLDWYN-MAYER STUDIOS INC.,

PARAMOUNT PICTURES CORPORATION,

TRISTAR PICTURES, INC.,

TWENTIETH CENTURY FOX FILM CORPORATION,

UNITED ARTISTS CORPORATION,

UNITED ARTISTS PICTURES INC.,

UNIVERSAL CITY STUDIOS, INC.,

WARNER BROS., a division of

TIME WARNER ENTERTAINMENT CO., L.P.

                                                                                                       Plaintiffs

and

STÉPHANE CARON, doing business as

"MARCHÉ AUX PUCES CHEZ DAN"

and MARIO CARON

                                                                                                  Defendants

RECONSIDERATION OF WRITTEN MOTION REVIEWED AT MONTRÉAL WITHOUT APPEARANCE BY PARTIES

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATED:September 4, 2001

WRITTEN SUBMISSIONS BY:

SOLICITORS OF RECORD:

Date: 20010904

Docket: T-79-01

Montréal, Quebec, September 4, 2001

Before:            Richard Morneau, Prothonotary

BETWEEN:

COLUMBIA PICTURES INDUSTRIES, INC.,

DISNEY ENTERPRISES, INC.,

METRO-GOLDWYN-MAYER STUDIOS INC.,

PARAMOUNT PICTURES CORPORATION,

TRISTAR PICTURES, INC.,

TWENTIETH CENTURY FOX FILM CORPORATION,

UNITED ARTISTS CORPORATION,

UNITED ARTISTS PICTURES INC.,

UNIVERSAL CITY STUDIOS, INC.,

WARNER BROS., a division of

TIME WARNER ENTERTAINMENT CO., L.P.

                                                                                                    Plaintiffs

                                                       and

                      STÉPHANE CARON, doing business as

                      "MARCHÉ AUX PUCES CHEZ DAN"

                                      and MARIO CARON

                                                                                                Defendants

Page: 2

                                                  ORDER

The defendants' motion for particulars is dismissed: costs to follow.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.