McNair,
J.:—This
is
a
324
motion
of
the
plaintiff
for
an
order
to
strike
out
the
defendant's
defence
under
Rule
460
by
reason
of
its
failure
to
file
and
serve
a
list
of
documents
as
required
by
Rule
447(2)
and,
concurrently
therewith,
for
judgment
in
default
of
defence
against
the
defendant
for
$449,808.27
and
costs,
pursuant
to
Rule
432.
The
notice
of
motion,
supporting
affidavit
and
draft
order
were
served
on
the
defendant's
solicitor
by
registered
mail,
together
with
the
written
representations
of
plaintiff's
counsel
in
letter
form.
The
defendant
has
made
no
opposition
to
the
matter.
The
defendant
is
an
Ontario
corporation
carrying
on
the
business
of
mens'
clothiers
at
the
City
of
Toronto.
Starting
on
or
about
October
1,
1979
and
ending
sometime
in
the
year
1982,
the
defendant
imported
into
Canada
a
substantial
number
of
clothing
items
for
which
the
plaintiff
alleges
it
passed
false
invoices
at
the
custom-house
with
a
view
to
avoiding
payment
of
duties.
The
plaintiff
determined
the
duty
paid
value
of
the
goods
to
be
$449,808.87,
representing
the
true
value
of
the
goods
in
the
sum
of
$359,694.38
and
duty
thereon
of
$90,114.49.
The
plaintiff
commenced
action
for
the
total
amount
aforesaid
by
statement
of
claim
filed
on
September
24,
1982.
The
gist
of
the
complaint
is
that
the
defendant
passed
invoices
showing
$329,897.90
for
the
total
value
of
the
imported
goods
which
is
$29,796.48
less
than
the
true
value
as
ascertained
by
the
plaintiff.
On
December
21,
1982
the
defendant
delivered
its
defence
wherein
it
denied
that
it
was
indebted
to
the
plaintiff
in
the
amount
claimed,
or
at
all.
The
main
ground
of
defence
was
that
the
undervalued
amount
of
$29,796.48
was
a
legitimate
cost
item
paid
by
the
defendant's
purchasing
agents
in
Hong
Kong
for
the
purchase
of
import
quotas
and
that
it
was
not
a
charge
that
should
be
taken
into
account
in
determining
the
fair
market
value
of
the
goods.
Accompanying
the
defence
was
a
statement
of
particulars
under
Rule
415
consisting
of
some
35
pages
of
worksheets,
debit
notes,
invoices,
packing
lists,
statements
and
customs
forms
supporting
the
allegations
pleaded
in
the
defence.
On
November
25,
1982
the
Adjudications
Directorate
of
Revenue
Canada,
Customs
and
Excise,
made
a
ministerial
decision
to
remit
$438,624.42
of
the
total
forfeited
amount
of
$449,808.87
on
condition
that
the
defendant
pay
to
Her
Majesty
the
difference
of
$11,184.45.
The
ministerial
decision
read
in
part
as
follows:
Re:
Customs
Seizure
No.
52357/TR-2092
Under
the
provisions
of
section
163
of
the
Customs
Act
decision
has
now
been
rendered
in
this
matter
as
follows:
that
the
value
of
the
goods
imported
by
Europort
Fashions
Ltd.,
Toronto,
Ontario
(as
set
out
in
detail
in
the
Schedule
attached
hereto)
in
the
amount
of
$449,808.87
has
been
forfeited
to
Her
Majesty;
that
the
amount
of
$438,624.42
of
the
forfeiture
is
remitted,
on
condition
that
Europort
Fashions
Ltd.
pay
Her
Majesty
the
amount
of
$11,184.45.
This
is
a
formal
demand
for
payment
of
the
sum
of
$11,184.45
due
and
payable
to
the
Crown.
If
such
payment
is
not
received
within
thirty
days,
the
Crown
will
take
such
other
action
as
it
deems
appropriate
to
effect
collection.
.
.
.
Sections
164
and
165
of
the
Customs
Act,
R.S.C.
1970,
c.
C-40,
provide:
164.
If
the
owner
or
claimant
of
the
thing
seized
or
detained
or
the
person
alleged
to
have
incurred
the
penalty,
does
not,
within
thirty
days
after
being
notified
of
the
Minister’s
decision,
give
him
notice
in
writing
that
such
decision
will
not
be
accepted,
the
decision
is
final.
165.
If
the
owner
or
claimant
of
the
thing
seized
or
detained,
or
the
person
alleged
to
have
incurred
the
penalty,
within
thirty
days
after
being
notified
of
the
Minister’s
decision,
gives
him
notice
in
writing
that
such
decision
will
not
be
accepted,
the
Minister
may
refer
the
matter
to
the
court.
[Emphasis
added]
The
defence
was
delivered
26
days
after
filing
of
the
ministerial
decision
remitting
a
substantial
portion
of
the
forfeiture
and
making
formal
demand
for
payment
of
the
sum
of
$11,184.45.
Without
going
into
the
merits,
it
is
arguable
that
this
is
the
amount
that
is
actually
in
issue
and
the
matter
referred
to
the
Court
for
decision
by
reason
of
the
finality
of
the
Minister’s
decision
under
the
provisions
of
section
164.
Obviously,
the
plaintiff
takes
a
different
view
of
“the
matter”
by
claiming
as
liquidated
demand
the
total
forfeited
amount
of
$449,808.87
without
regard
to
the
amount
of
$11,184.45
formally
demanded
by
the
ministerial
decision
after
remission.
This
could
well
be
the
nub
of
the
case
when
and
if
it
should
go
to
trial.
The
plaintiff
filed
no
answer
or
reply
to
the
defence
within
the
prescribed
period
of
15
days
whereby
the
pleadings
would
be
deemed
to
be
closed
on
or
about
January
5,
1983.
The
affidavit
in
support
of
the
motion
is
sworn
by
the
plaintiff's
solicitor.
The
concluding
paragraph
thereof
deposes:
7.
The
Defendant
has
ceased
to
carry
on
business
and
has
vacated
the
premises
it
was
renting
at
134
Peter
Street,
Toronto,
owing
the
landlord
a
substantial
amount
of
rent.
The
Canadian
Imperial
Bank
exercised
its
right
under
an
assignment
of
Book
Debts
and
appointed
a
receiver
in
July,
1983,
at
which
time
all
of
the
known
assets
of
the
Defendant
were
sold.
It
is
difficult
to
conceive
that
the
facts
stated
in
the
paragraph
are
ones
which
the
deponent
is
able
of
his
own
knowledge
to
prove
and
the
inference
is
virtually
irresistible
that
the
averments
are
nothing
more
than
hearsay
based
on
information
received
from
others.
The
evidence
would
have
been
more
readily
acceptable
had
it
been
couched
in
terms
of
the
affiant's
information
and
belief
and
the
ground
or
sources
therefor.
One
can
only
conjecture
as
to
the
present
status
of
the
receivership
and
whether
the
receiver
should
have
any
status
in
this
proceeding
or
in
the
action.
Leaving
aside
these
questions,
the
issue
is
simply
whether
an
order
should
go
in
the
terms
sought.
The
Rules
on
which
the
plaintiff
primarily
relies
are
set
out
hereunder:
447.(1)
.
.
.
(2)
Subject
to
the
provisions
of
this
Rule
a
party
shall,
within
20
days
after
the
pleadings
in
the
action
are
deemed
to
be
closed
as
between
him
and
any
other
party,
or
such
longer
period
as
that
other
party
may
agree
to,
file
and
serve
on
that
other
party
a
list
of
the
documents
of
which
he
has
knowledge
at
that
time
that
might
be
used
in
evidence
(a)
to
establish
or
to
assist
in
establishing
any
allegation
of
fact
in
any
pleading
filed
by
him;
or
(b)
to
rebut
or
to
assist
in
rebutting
any
allegation
of
fact
in
any
pleading
filed
by
any
other
party
(Form
19).
460.
(1)
If
any
party
who
is
required
by
Rules
447
to
458,
or
by
any
order
made
thereunder,
to
make
discovery
of
documents
or
to
produce
any
documents
for
the
purpose
of
inspection
or
any
other
purpose
fails,
without
reasonable
cause
or
excuse,
to
comply
with
any
provision
of
Rules
447
to
458
or
with
that
order,
as
the
case
may
be,
or
fails
to
make
reasonable
effort
to
give
full
discovery,
then
the
Court
may
make
such
orders
as
seems
just
including,
in
particular,
an
order
that
the
action
be
dismissed,
or,
as
the
case
may
be,
an
order
that
the
defence
be
struck
out
and
judgment
entered
accordingly.
(2)
.
.
.
432.
Where
the
plaintiff’s
claim
against
a
defendant
is
for
a
liquidated
demand
only,
if
that
defendant
has
not
filed
a
defence,
the
plaintiff
may,
after
the
expiration
of
the
period
of
30
days
fixed
by
Rule
402,
apply
for
final
judgment
against
that
defendant
for
a
sum
not
exceeding
that
claimed
in
respect
of
the
demand
and
for
costs,
and
proceed
with
the
action
against
the
other
defendant,
if
any
(Affidavit
of
Service
—
Form
3;
Judgment
—
Form
14).
The
argument
goes
thus.
Rule
447(2)
requires
that
a
party
shall,
within
20
days
after
the
close
of
pleadings,
file
and
serve
on
the
other
party
a
list
of
the
documents
of
which
he
is
aware
and
that
he
might
wish
to
use
in
evidence.
The
pleadings
closed
on
or
about
January
5,
1983.
No
list
of
documents
was
ever
delivered
by
the
defendant.
Accordingly,
more
than
20
days
have
elapsed
since
the
close
of
pleadings
and
the
defendant
has
failed
to
comply
with
the
requirements
of
Rule
447(2).
Because
of
this
default,
the
plaintiff
is
entitled
under
Rule
460
to
apply
for
an
order
that
the
defence
be
struck
out
and
that
judgment
be
entered
accordingly.
This
automatically
invokes
Rule
432
for
judgment
in
default
of
defence
in
respect
of
a
liquidated
demand.
When
the
defence
is
ordered
to
be
struck
out
under
Rule
460,
then
it
is
unnecessary
that
the
plaintiff
await
the
expiration
of
the
stipulated
period
of
30
days.
In
my
opinion
Rule
447(2)
cannot
be
read
in
isolated
context
from
Rule
447(1),
which
prefaces
it
and
reads:
447.
(1)
After
the
close
of
pleadings,
there
shall,
subject
to
and
in
accordance
with
the
provisions
of
these
Rules,
be
discovery
(including
the
giving
of
an
oppor
tunity
to
inspect
and
make
copies)
of
the
documents
by
the
parties
to
an
action
(including
the
Crown
when
it
is
such
a
party);
but
nothing
in
these
rules
shall
be
taken
as
preventing
parties
to
an
action
from
agreeing
to
dispense
with
or
limit
the
discovery
of
documents«that
they
would
otherwise
be
required
to
make
to
each
other.
The
decision
in
Look
I
nt'I
Surgical
Implants
Inc.
v.
Hair
Unlimited
I
nt'I
(Canada)
Ltd.,
[1977]
1
F.C.
775,
(T.D.),
turned
on
another
point
but
Mahoney,
J.
made
these
cogent
comments
on
Rule
447(2)
at
776-77:
Rule
447(2)
requires
that
each
party,
within
20
days
after
the
close
of
pleadings,
file
and
serve
on
the
opposing
party
a
list
of
the
documents
of
which
he
knows,
and
which
might
be
used
in
evidence
as
aforesaid.
Rule
449(1)
requires
that
the
documents
or
bundles
of
documents
be
enumerated
in
a
convenient
order,
describing
each
as
briefly
as
possible
but,
nevertheless,
“sufficiently
to
enable
it
to
be
identified”.
To
the
extent
that
material
documents
are
in
the
possession,
custody
or
control
of
a
party,
his
obligation
to
disclose
them
arises
if
he
wishes
to
use
them
in
his
own
interest
or
if
an
order
for
general
or
special
discovery
extending
to
them
is
made
.
.
.
One
point
is
made
abundantly
clear
—
the
requirement
for
making
a
list
of
documents
as
a
matter
of
course
under
Rule
447(2)
is
a
reciprocal
obligation
resting
on
both
parties.
In
the
absence
of
evidence
to
the
contrary,
it
must
be
inferred
that
the
plaintiff
made
no
such
list
of
documents.
In
my
view,
it
seems
very
inequitable
that
a
party
should
be
threatened
with
having
its
defence
struck
for
failure
to
file
a
list
of
documents
where
the
party
making
the
threat
has
not
seen
fit
to
file
its
own
list.
Moreover,
the
authority
of
the
court
to
strike
a
defence
under
Rule
460(1)
is
purely
discretionary
and
the
essential
grounds
for
the
exercise
of
that
discretion
are
the
failure
of
a
party
“without
reasonable
cause
or
excuse,
to
comply
with
any
provision
of
Rules
447
to
458
or
.
.
.
to
make
reasonable
efforts
to
give
full
discovery.”
The
burden
of
establishing
such
grounds
in
this
case
rests
on
the
plaintiff.
The
fact
that
the
plaintiff
failed
to
do
that
of
which
it
complains
on
the
part
of
the
defendant
may
well
constitute
reasonable
cause
or
excuse
on
the
latter's
part
for
failing
to
make
a
list
of
documents.
The
plaintiff's
motion
is
therefore
dismissed,
with
costs
to
the
defendant.
ORDER
The
motion
of
the
plaintiff
is
dismissed
with
costs
payable
to
the
defendant
forthwith
after
taxation
thereof.
Motion
dismissed.
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