Levi Strauss & Co. v. Woolworth Canada Inc., docket T-2009-96

     T-2009-96

BETWEEN:

     LEVI STRAUSS & CO. and

     LEVI STRAUSS & CO. (CANADA) INC.

     Plaintiffs

     - and -

     WOOLWORTH CANADA INC.

     Defendant

     REASONS FOR ORDER

CULLEN, J.:

     This motion for an Order to strike paragraphs 9 and 11(d) and a portion of paragraph 2, and the particulars of those paragraphs provided, and to provide particulars for paragraphs 5 and 14 of the Statement of Defence and Counterclaim, came before me at a hearing in Ottawa, Ontario, on January 9, 1997. At the close of argument, I took the matter under reserve. My determination on the motion of the Plaintiff is as follows.

DISCUSSION

     Paragraph 9 of the Statement of Defence: Should Rule 419(1)(a) be used to strike this paragraph which asserts that the plaintiff has acquiesced in and/or condoned the application of stitching to back pockets of pants, by third party manufacturers, distributors and retailers in Canada, alike to the alleged stitching design of the plaintiff, thereby rendering the alleged stitching design not distinctive? The Court will only strike pleadings in plain and obvious cases, where the case is beyond doubt.¹ However, where bare assertions are made without a supporting factual base, the claim will be found not to disclose a reasonable cause of action or defence, and may be struck according to Rule 419(1)(a). Paragraph 9, taken along with the defendant's accompanying particulars, indicates to me that this is not a case for striking. The defendant's claim relies on current third-party use of an identical or similar stitching design. The defendant has provided a statement of facts supporting this claim, as well as photocopies of numerous actual garments. In my opinion, this is a sufficient statement of the material facts upon which the claim made in Paragraph 9 is made. Therefore, Paragraph 9 may remain in the Statement of Defence, and no further particulars need be provided.

     The particulars furnished with respect to Paragraph 9 are also relevant to Paragraph 8(a) regarding common use by third parties. These particulars provide enough information for the plaintiffs to understand the defendant's position, and to plead intelligently to it. For the same reasons as above, I see no need for further particulars with respect to Paragraph 8(a) of the Statement of Defence.

     Paragraph 11(d) of the Statement of Defence: Should Rule 419(1)(a) be used to strike this paragraph which asserts that the plaintiff's alleged stitching design did not otherwise comply with the Unfair Competition Act? Counsel for the Defendant admitted, at the hearing, that this paragraph had been poorly worded. However, the materials provided in the Affidavit of Genny Castiglione satisfy me that there is a sufficient material basis to support this claim. Paragraph 11(d) may remain in the Statement of Defence, and no further particulars need be provided.

     Paragraph 2 of the Statement of Defence: Should Rule 419(1)(a) be used to strike the last two sentences of this paragraph concerning common use and the non-distinctiveness of the plaintiff's alleged stitching design? Again, it is my opinion that the particulars provided reveal enough information for the plaintiffs to understand the defendant's position, and to plead intelligently to it. I see no need for further particulars with respect to Paragraph 2 of the Statement of Defence.

     Paragraphs 5 and 14 of the Statement of Defence: I wish to preface my order concerning particulars by emphasizing that a distinction must be made between a request for particulars for pleading and for particulars for trial. It is established case law that the right of any party to particulars before trial is quite broad, so as to aid in the adequate preparation of a case, and to limit surprise at trial. However, the right of a party to be furnished with particulars for the purposes of pleadings is narrower. The demand for particulars should not be used as a means to discover the scope of the evidence that might be produced against a party at trial, or as a means to discover some grounds of defence still unknown to the requesting party.² Particulars will not be ordered unless the applicant establishes that they are both necessary for pleading and not within its knowledge, unless the pleadings are, on their face, inadequate or in violation of the rules.³

     Should Rule 419(5) be used to require the defendant to provide particulars with respect to the facts relied upon regarding sales of garments through the defendant's retail outlets? In my opinion, it should not. The plaintiff has not indicated exactly why this information is necessary to it at this point in the pleadings. The particulars requested would be more appropriately obtained on discovery for trial, and are not necessary in order for the plaintiff to plead intelligently to the claims contained in Paragraphs 5 and 14.

OTTAWA

     B. Cullen

septembre 16, 1999

     J.F.C.C.     

     ¹Munsigwear, Inc. v. Promofile Canada Ltee. et al. (1995) 61 C.P.R. (3d) 158 at 159 (F.C.T.D.).

     ²Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al. (1979), 43 C.P.R. (2d) 285 at 286-287 (F.C.T.D.).

     ³Windsurfing International Inc. et al. v. Novaction Sports Inc. et al. (1988), 18 C.P.R. (3d) 230 at page 237 (F.C.T.D.).