Date: 20070419
Docket: T-2227-06
Citation: 2007 FC 413
ADMIRALTY ACTION IN
PERSONAM
BETWEEN:
OCÉAN NAVIGATION INC.
Plaintiff
and
ABITIBI-CONSOLIDATED INC.
Defendant
REASONS FOR ORDER
MORNEAU P.
[1]
This is essentially a motion by the Plaintiff under rules
174 and 181 of the Federal Courts Rules (the rules) for an order
directing the Defendant to provide further and better particulars of certain
paragraphs of its statement of defence. This motion takes place in the context
of an admiralty case where the Plaintiff claims from the Defendant a
contribution in general average further to the grounding of a barge on December
3rd, 2004.
The
law in respect of particulars
[2]
Before making an order in respect of particulars, the Court
must however evaluate whether a party has enough information to be able to
understand the other party's position and to prepare a responsive answer, be it
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.)
[3]
In Embee Electronic Agencies Ltd. v. Agence Sherwood
Agencies Inc. et al. (1979), 43 C.P.R. (2d) (F.C.T.D.), at page 287, Marceau J. stated the extent to which
the defendant is entitled to be furnished with particulars of the plaintiff's
case at the pleading 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.
(My emphasis)
[4]
In its motion, the Plaintiff states, inter alia,
that the Defendant in its statement of defence has failed to provide the
material facts and the necessary particulars of its allegations, which allegations
must be seen therefore as vague conclusions of law and not valid allegations of
material facts.
[5]
On April 12, 2007, the Defendant provided the Plaintiff’s
counsel with a series of particulars, which seek to answer, save one, all
demands for particulars listed in the Plaintiff’s notice of motion.
[6]
It must be recalled, in addition, that the purpose of a
motion for particulars is not the same as an examination for discovery of the
other party, and that the purpose of such a motion, as stated in Embee, supra,
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, himself citing Embee, referred precisely to this distinction, as
follows:
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.1
_________________
1 Embee Electronic Agencies v.
Agence Sherwood Agencies Inc. (1979), 43 C.P.R. (2d) 285.
Analysis
[7]
Upon a review of the impugned paragraphs, the motion
material of the parties, and upon listening to counsel, I am of the view that
the Plaintiff does not need any further particulars, including with respect to
point 1c) of the Plaintiff’s motion, for it to reply intelligently to the
statement of defence and to state properly the grounds of reply on which it
intends to rely. The statement of defence at bar, in my opinion, and the
particulars furnished on April 12, 2007, provide the Plaintiff with sufficient
particulars to enable it to understand the position of the Defendant and to
appreciate sufficiently the facts on which it is founded.
[8]
The affidavit provided by the Plaintiff in support of its
motion does not convince me in addition otherwise.
[9]
I do not consider also that the absence of the particulars
sought impairs the Plaintiff with its assessment of whether it should consider
bringing any of the interlocutory motions alluded to in paragraph 18 of its
written representations.
[10]
Finally, its request under rule 206 with respect to paragraph
15 of the statement of defence is also not justified considering the
clarification provided by the Plaintiff on April 12, 2007.
[11]
This motion, therefore, shall be denied with costs in the
cause. An order will be issued in accordance with these reasons.
“Richard Morneau”
Montréal, Quebec
April 19, 2007
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