Brantford Chemicals Inc. v. Merck & Co. Inc., 2004 FCA 223

Date: 20040608

Docket: A-489-03

Citation: 2004 FCA 223

CORAM:        LINDEN J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                BRANTFORD CHEMICALS INC.

                                                                                                                                            Appellant

(Defendant)

                                                                           and

MERCK & CO., INC. and

MERCK FROSST CANADA & CO.

                                                                                                                                      Respondents

(Plaintiffs)

                                            Heard at Toronto, Ontario, on June 8, 2004.

                       Judgment delivered from the Bench at Toronto, Ontario, on June 8, 2004.

REASONS FOR JUDGMENT OF THE COURT BY:                                                 MALONE J.A.

Date: 20040608

Docket: A-489-03

Citation: 2004 FCA 223

CORAM:        LINDEN J.A.

SHARLOW J.A.

MALONE J.A.

BETWEEN:

                                                BRANTFORD CHEMICALS INC.

                                                                                                                                            Appellant

(Defendant)

                                                                           and

MERCK & CO., INC. and

MERCK FROSST CANADA & CO.

                                                                                                                                      Respondents

(Plaintiffs)

                                     REASONS FOR JUDGMENT OF THE COURT

                         (Delivered from the Bench at Toronto, Ontario, on June 8, 2004)

MALONE J.A.

[1]                Following the Supreme Court of Canada decision in Z. I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450 at paragraph 18, this Court may intervene to overturn a discretionary order made by a Motions Judge, only when a Motions Judge had no grounds to interfere with a Prothonotary's decision or, in the event such grounds existed, if a Motions Judge's decision was arrived at on a wrong basis or was plainly wrong.

[2]                In Sweet v. Canada (1999), 249 N.R. 17 (F.C.A.) at paragraph 19, Décary J.A., speaking for this Court, stated that although some elements may be missing and others incomplete, if a pleading contains enough information to allow the opposing party to know with some certainty the case to be met, the pleading should not be struck. Here the statement of claim sets out the patents and the allegations of infringement with a sufficient degree of detail as to the processes used. The Motions Judge concluded that the statement of claim pleaded material facts which, when taken to be true, disclose a reasonable cause of action for patent infringement. We have not been persuaded that the Motions Judge arrived at his decision on a wrong basis or was plainly wrong.

[3]                We are also satisfied that the Motions Judge did not commit an error in finding that the claim for punitive and exemplary damages could be sustained. Exemplary damages are awarded where general and/or aggravated damages are insufficient for deterrence purposes, and are used as a means to punish the defendant's misconduct. It is not necessary to specifically plead a claim for exemplary or punitive damages (Lubrizol Corp. v. Imperial Oil Ltd. (1996), 67 C.P.R. (3d) 1 (F.C.A.)). Accordingly, it seems pointless to us to strike a claim for such damages at this stage of the proceedings when that claim need not be pleaded in the first instance.

[4]                Similarly, we are also satisfied that the Motions Judge did not err in deciding that the Prothonotary was not clearly wrong to deny particulars in the circumstances of this case. As the Motions Judge stated, the appellant neither filed a supporting affidavit nor served a demand for particulars. These are not prerequisites, but where, as here, the need for further particulars is not apparent on the face of the record, such a formal demand or an affidavit might have been persuasive. Overall, we are unable to conclude that in upholding the Prothonotary's refusal to order particulars that the Motions Judge arrived at his decision on a wrong basis or that he was plainly wrong. As conceded by the respondents' counsel, neither this appeal nor the orders to which this appeal relates bar the appellant from making a formal demand or motion for particulars at some later stage of the proceedings.

[5]                The appeal should be dismissed with costs.                   

         "B. Malone"

                                                                                                                                                      J.A.                         

FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           A-489-03

STYLE OF CAUSE:               BRANTFORD CHEMICALS INC.

Appellant

(Defendant)

and

MERCK & CO., INC. and

MERCK FROSST CANADA & CO.

                                                                                                                                         Respondents

(Plaintiffs)

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       JUNE 8, 2004

REASONS FOR JUDGMENT

OF THE COURT:                               (LINDEN, SHARLOW & MALONE JJ.A)

DELIVERED FROM THE

BENCH BY:                                        MALONE J.A.

APPEARANCES:

Mr. Peter Wilcox                                   FOR THE APPELLANT         

Ms. Nathalie Butterfield                         FOR THE RESPONDENTS

SOLICITORS OF RECORD:                      

Ogilvy Renault                                                      

Toronto, Ontario                                   FOR THE APPELLANT

Goodmans LLP

Toronto, Ontario                                   FOR THE RESPONDENTS