Paramount Enterprises International, Inc. v. Beston Chemical Corp. Inc., docket T-956-97

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Date: 19971210

File: T-956-97

MONTRÉAL, QUEBEC, THIS 10th DAY OF DECEMBER 1997

Present: RICHARD MORNEAU, ESQ., PROTHONOTARY

ACTION IN PERSONAM AGAINST BESTON CHEMICAL CORPORATION, INC., CHINA NORTH CHEMICAL INDUSTRIES CORPORATION, CHINA XINSHIDAI COMPANY, CHINA OCEAN SHIPPING (GROUP) CO. (COSCO) AND GUANGZHOU OCEAN SHIPPING COMPANY (COSCO GUANGZHOU),

Between:

PARAMOUNT ENTERPRISES INTERNATIONAL, INC.

Plaintiff,

AND

BESTON CHEMICAL CORPORATION, INC.

and

CHINA NORTH CHEMICAL

INDUSTRIES CORPORATION

and

CHINA XINSHIDAI COMPANY

and

CHINA OCEAN SHIPPING (GROUP) CO. (COSCO)

and

GUANGZHOU OCEAN SHIPPING

COMPANY (COSCO GUANGZHOU),

Defendants.

ORDER

1. The plaintiff shall provide the following particulars to the defendants China Ocean Shipping (Group) Co. and Guangzhou Ocean Shipping Company within fifteen days of this order:

a) what wrongful and illegal "insistence and/or coercion" was allegedly made by these Defendants;

b) how was such alleged "insistence and/or coercion" made, and if in writing, Defendants request production thereof;

c) what person(s) within each of the Defendants made the alleged "insistence and/or coercion";

d) when was it made;

e) to what individual person(s) was the alleged "insistence and/or coercion" addressed;

f) where or from what place was the alleged "insistence and/or coercion" made.

2. The said defendants' motion is otherwise dismissed.

3. In addition, and in accordance with my order of September 30, 1997 in this case, the motion by Paramount Enterprises International, Inc. for default judgment in personam against Beston Chemical Corporation, Inc., China Ocean Shipping (Group) Co. (Cosco) and Guangzhou Ocean Shipping Company (Cosco Guangzhou) is set over to January 26, 1998. That date may be postponed with the consent of the plaintiff, which consent would be expected if the opportunity provided for in subsection 457(2) of the Federal Court Rules is taken.

3. Costs in the cause.

Richard Morneau

Prothonotary

Certified true translation

C. Delon, LL.L.

Date: 19971210

File: T-956-97

MONTRÉAL, QUEBEC, THIS 10th DAY OF DECEMBER 1997

Present: RICHARD MORNEAU, ESQ., PROTHONOTARY

Between:

PARAMOUNT ENTERPRISES INTERNATIONAL, INC.

Plaintiff,

AND

BESTON CHEMICAL CORPORATION, INC.

and

CHINA NORTH CHEMICAL

INDUSTRIES CORPORATION

and

CHINA XINSHIDAI COMPANY

and

CHINA OCEAN SHIPPING (GROUP) CO. (COSCO)

and

GUANGZHOU OCEAN SHIPPING

COMPANY (COSCO GUANGZHOU),

Defendants.

ORDER

WHEREAS at this still preliminary stage of the proceedings the costs of China Ocean Shipping (Group) Co. and Guangzhou Ocean Shipping Company must be conservatively estimated and a request for reassessment may, if necessary, be made during "pre-trial proceedings" in the event that this matter reaches that stage;

WHEREAS the sometimes too optimistic views of defendants must be tempered and plaintiffs not deterred from prosecuting a cause of action by being too severe in ordering security for costs (see Ferguson v. Arctic Transportation Ltd. et al. (1996), 115 F.T.R. 247, at 253);

WHEREAS the Court, having reviewed the draft bill of costs submitted by the defendants, stopping the calculation after examinations for discovery and applying the minimum in column III to the items not initiated by the defendants, and applying the average in column III to the items initiated by the defendants, and including a reasonable amount for disbursements, considers that a total of $15,000 should be ordered under Rule 446 of the Federal Court Rules;

AND WHEREAS the plaintiff is already holding $5,000 as security for the defendants;

ACCORDINGLY, THE COURT:

(a) fixes the security for the defendants' costs in the amount of $10,000 which counsel for the plaintiff shall secure in a form acceptable to counsel for the parties involved in this motion;

(b) allows the plaintiff ten days from the date of this order to comply herewith;

(c) stays the proceedings as against the defendants in the instant motion until the said security has been provided and counsel for the defendants China Ocean Shipping (Group) Co. and Guangzhou Ocean Shipping Company has been informed thereof;

(d) costs in the cause.

Richard Morneau

Prothonotary

Certified true translation

C. Delon, LL.L.

Date: 19971210

File: T-956-97

Between:

PARAMOUNT ENTERPRISES INTERNATIONAL, INC.

Plaintiff,

AND

BESTON CHEMICAL CORPORATION, INC.

and

CHINA NORTH CHEMICAL

INDUSTRIES CORPORATION

and

CHINA XINSHIDAI COMPANY

and

CHINA OCEAN SHIPPING (GROUP) CO. (COSCO)

and

GUANGZHOU OCEAN SHIPPING

COMPANY (COSCO GUANGZHOU),

Defendants.

REASONS FOR ORDER

RICHARD MORNEAU, ESQ., PROTHONOTARY

[1] This is a motion by the defendants China Ocean Shipping (Group) Co. and Guangzhou Ocean Shipping Company (the "defendants") under paragraph 415(1)(a) and subsection 415(3) of the Federal Court Rules (the "Rules") for an order that the plaintiff supply them with further and better particulars concerning certain paragraphs in its statement of claim.

[2] On or about August 29, 1997, counsel for the plaintiff sent counsel for the defendants an answer (the "answer") to the request for particulars that counsel for the defendants had sent to them in July 1997. However, the answer is regarded as insufficient and as failing to comply with the requirements of the Rules, which require that the material facts supporting a pleading be pleaded expressly.

Context of the action

[3] For the purposes of this motion, I would note that in paragraphs 7 and 11 of its statement of claim the plaintiff alleges that the defendants wrongfully interfered with its business, that is, that it deliberately had the other defendants in the case not comply with a charter-party entered into by those defendants with the plaintiff.

Rules governing particulars

[4] Before making an order with respect to particulars, the Court must ask whether a party has sufficient information to understand the position of the adverse party and to prepare a proper response, whether it be 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.)

[5] In the decision 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. explained the extent to which the defendant is entitled to obtain particulars as to 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 mine]

Analysis

[6] What the defendants primarily object to in the answer is the fact that on that occasion counsel for the plaintiff sent them a ream of documents rather than excerpting from the documents and assembling the material facts that they intended to supply as particulars, in a separate pleading.

[7] I am not prepared to acknowledge that the plaintiff's answer is in all respects inadequate. Certainly the answer has not followed the form in which the particulars supplied should appear. However, it seems to me that in terms of paragraphs 1, 2 and 4 of the statement of claim, with respect to which the defendants had initially put their questions, the answer is satisfactory. No additional particulars will be required in respect thereof.

[8] The same conclusion applies in respect of paragraph 12 of the statement of claim, since according to the answer and the comments of counsel for the plaintiff in argument on the instant motion, paragraph 12 addresses the breach of the charter-party contract, which breach, as opposed to the wrongful interference, does not directly involve the defendants.

[9] However, the same is not true for paragraph 8 of the statement of claim, which reads as follows:

8. Further or alternatively and without prejudice to the foregoing, Defendants Cosco and Cosco Guangzhou are equally liable to indemnify Paramount, jointly and severally with the other Defendants herein, as a result of their wrongful and illegal interference with the Conline booking, of which Cosco and/or Cosco Guangzhou had full knowledge and knowing or being deemed to have known that their said interference would cause damages to Paramount;

[10] An assertion that there was interference in the performance of a contract between two other parties is a serious assertion. It is a weighty allegation. It would have to be assumed that in making such an allegation the plaintiff had and still has all the material facts on which it is based (for an overview of the material needed to support an allegation of interference in the performance of a contract, see Halsbury's Laws of England, 4th ed., vol. 45, para. 1518 and [1973] S.C.R. 42">Fabbi et al. v. Jones, [1973] S.C.R. 42).

[11] Certainly wrongful interference in the performance of a contract is in the same family as the acts for which rule 409 and the first part of rule 415(1)(a) provide that detailed pleadings are required. Those provisions read as follows:

409. A party shall plead specifically any matter (e.g. performance, release, a statute of limitation, prescription, fraud or any fact showing illegality)

...

415.(1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any allegation including, without prejudice to the generality of the foregoing words,

( a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies;

[Emphasis mine]

[12] The importance of observing these rules in pleadings is pointed out in, inter alia, Dolomite Svenska Aktiebolag v. Dana Douglas Medical Inc. (1994), 58 C.P.R. (3d) 531 and Commercial Union Assurance Co. plc et al. v. M.T Fishing Co. and Wood (1996), 107 F.T.R. 291.

[13] As further particulars concerning paragraph 8 of the statement of claim, the plaintiff referred the defendants to six documents and indicated the following in its answer:

3. In full and complete answer to the particulars sought with respect to paragraph 8 of the Statement of Claim, Plaintiff states as follows:

a. The wrongful and illegal interference results from Cosco and/or Cosco Guangzhou's agreement to carry the cargo referred to in the Statement of Claim and/or their insistence and/or coercion as alleged by the Defendants Beston and Nocinco that the shippers of this cargo ship the subject cargo with the Defendants Cosco or Cosco Guangzhou;

[14] In the circumstances, that does not appear to me to be sufficient to enable the defendants to plead intelligently in respect of that allegation. I therefore find that the plaintiff will have to supply the following particulars, which the defendants state as follows in paragraph 5 of their amended motion:

a) what wrongful and illegal "insistence and/or coercion" was allegedly made by these Defendants?

b) how was such alleged "insistence and/or coercion" made, and if in writing, Defendants request production thereof?

c) what person(s) within each of the Defendants made the alleged "insistence and/or coercion"?

d) when was it made?

e) to what individual person(s) was the alleged "insistence and/or coercion" addressed?

f) where or from what place was the alleged "insistence and/or coercion" made?

[15] Contrary to what the plaintiff contends, the particulars in these various questions do not seem to me to go beyond what must normally be pleaded in the circumstances.

[16] Moreover, if the plaintiff intends to refer the defendants to various documents in answer to these questions, it may certainly do so, but it will also have to excerpt from those documents the material facts that it intends to provide as particulars.

[17] The plaintiff shall have fifteen days to supply the said particulars.

[18] The defendants' motion must otherwise be dismissed. Quite a few of the other particulars sought are in the nature of clarifications that the defendants will have to keep for the stage when the plaintiff is examined for discovery, which stage will no doubt take place in this case.

[19] Costs in the instant motion will be in the cause.

Richard Morneau

Prothonotary

MONTRÉAL, QUEBEC

December 10, 1997

Certified true translation

C. Delon, LL.L.

Federal Court of Canada

Court file No. T-956-97

between

PARAMOUNT ENTERPRISES

INTERNATIONAL, INC.

Plaintiff,

" and "

BESTON CHEMICAL CORPORATION, INC. and CHINA NORTH CHEMICAL INDUSTRIES CORPORATION and CHINA XINSHIDAI COMPANY and CHINA OCEAN SHIPPING (GROUP) CO. (COSCO) and GUANGZHOU OCEAN SHIPPING COMPANY (COSCO GUANGZHOU),

Defendants.

REASONS FOR ORDER

FEDERAL COURT OF CANADA

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO: T-956-97

STYLE OF CAUSE: PARAMOUNT ENTERPRISES INTERNATIONAL, INC.

Plaintiff,

AND

Defendants.

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: December 1, 1997

REASONS FOR ORDER OF RICHARD MORNEAU, ESQ., PROTHONOTARY

DATE OF REASONS FOR ORDER: December 10, 1997

APPEARANCES:

Andrew Ness for the plaintiff

Guy Vaillancourt for the defendants China Ocean Shipping (Group) Co. (Cosco) and Guangzhou Ocean Shipping Company (Cosco Guangzhou)

SOLICITORS OF RECORD:

Andrew Ness for the plaintiff

Sproule, Castonguay, Pollack

Montréal, Quebec

Guy Vaillancourt for the defendants China Ocean Shipping

Étude légale Guy Vaillancourt (Group) Co. (Cosco) and Guangzhou Ocean

Québec, Quebec Shipping Company (Cosco Guangzhou)

John O'Connor for the defendant Beston Chemical Corporation, Langlois, Robert Inc.

Québec, Quebec

Andrea Sterling for ICI Canada Inc.

Gottlieb & Pearson

Montréal, Quebec

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Paramount Enterprises International, Inc. v. Beston Chemical Corp. Inc., docket T-956-97

Citationsdocket T-956-97

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docket T-956-97