Date: 19980429
Docket: T-109-97
Action in rem against The Ship September (a.k.a. Desperado)
BETWEEN:
DOUGLAS GILLING
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
represented by the Minister of Transport and
DENISE SHEPPARD and ALLEN COX and
the owners and all others interested in
THE SHIP SEPTEMBER (a.k.a. DESPERADO)
Defendants
ORDER AND REASONS FOR ORDER
TEITELBAUM J.:
[1] On November 28, 1997, the plaintiff, Douglas Gilling, who represents himself, caused to be filed into the Federal Court Registry a notice of motion to strike out pleadings and for further and better particulars.
[2] In his notice of motion, the plaintiff states that his motion is for:
| (1) That certain parts of the defendant Denise Sheppard's (defendant) counter claim be struck out; and |
| (2) that the further and better particulars of the defendant's counter claim, requested of the defendant's solicitor on 29 September 1977[sic], 30 September 1997 and 18 October 1997 be provided to the plaintiff; and |
| (3) that such particulars be provided within 10 days of this order and that in default of compliance the defendant's counter claim be struck out; and |
| (4) that until provision of the particulars sought the defendant be prohibited from taking any further proceedings in this action; and |
| (5) reserving the right of the plaintiff to request additional particulars should the particulars when provided not be adequate to allow the plaintiff to be fully informed about the defendant's counter claim; and |
| (6) that the defendant pay the plaintiff's costs of this motion forthwith. |
[3] As grounds for the said motion, plaintiff states:
| (1) that certain parts of the defendant's counter claim offend against rules 412(2) and 419(1) of the Federal Court Rules; and |
| (2) that the defendant's counter claim is not pleaded with the particularity demanded by the Federal Court Rules such that the Plaintiff remains uninformed as to the nature of the case to which he has to plead. |
| AND more particularly as set out and identified in relation to each of the offending paragraphs of the defendant's counter claim and appearing in Exhibit "I" to the affidavit of Douglas Gilling filed with the motion. |
[4] Attached to the motion to strike and for particulars, was an affidavit of the plaintiff with a number of exhibits. Exhibit "F", a letter dated September 29, 1997 addressed to counsel for the defendant Denise Sheppard, lists the particulars being requested and which particulars arise from the statement of defence and counterclaim.
This motion first came before me by way of a Rule 324 application. The plaintiff is a resident of Australia. I decided that I would hear this application by way of a telephone conference call which took place on April 22, 1998 at 4:00 p.m., Ottawa time.
[5] I heard the submissions of the parties. Counsel for the defendant Cox refused to take part in the conference call.
[6] The following are the particulars to be given by the defendant Sheppard within a delay of 30 days of today's date:
| 1) In relation to paragraph 22 of the defence, no particulars need be given. The paragraph clearly speaks of a Power of Attorney which gives the defendant Cox "care, custody and control". |
| 2) In relation to paragraph 23 of the defence, the details in paragraph 2(a) need not be given. It is sufficient for pleading purposes to know that Sheppard was hired by Cox "in the capacity of cook, secretary and deck-hand in February 1992." No particulars need be given relating to paragraphs 2(b) and (c) as there is no mention in paragraph 23 of the defence of remuneration. |
| 3) In relation to paragraph 25 of the defence, the defendant Sheppard is to provide particulars of the repairs, maintenance, crew, services and equipment which it is alleged undertaken, provided or engaged for the vessel. |
| 4) In relation to paragraph 26 of the defence, all details in relation to the alleged debts on the vessel of Can $72,750. and the allocation of the said funds, e.g. repairs, etc. and to whom the said monies were owing or paid. |
| 5) In relation to paragraph 27 of the defence, particulars as to the names of the holders of the Turkish liens and the dates when the liens were registered, as well as the detailed reasons for same. |
| 6) In relation to paragraph 30 of the defence, particulars of the fiduciary relationship or agency agreement between the plaintiff and the defendant Cox should be given to the plaintiff. In relation to the sums of "19,828.46 and "12,500. and "10.00, all particulars must be given, the names, dates and reasons for payment or for debt still owing. |
| 7) In relation to paragraph 32 of the defence, all details of the "further necessary repairs on the vessel from March 5, 1994 to February 7, 1997", the names of the persons to whom the $53,350.00 was paid, and the work carried out by each of such persons. |
| 8) In relation to paragraph 33 of the defence, no particulars need be given. The plaintiff should know if he was aware, as of May 1996, that the vessel had been sold. This applies to the balance of the allegations found in this paragraph. |
| 9) In relation to paragraph 34 of the defence, the defendant Sheppard is to advise the plaintiff of the exact date in March 1994 of the "writing" and the address to which the said writing was sent. |
| 10) In relation to paragraph 37 of the counterclaim, the defendant Sheppard shall provide particulars relating to the issue of "restitution" from plaintiff to Sheppard "for the amounts paid by defendant Sheppard for the discharge of the debts ... " as stated in this paragraph, to whom paid, when paid and why paid for and on behalf of the plaintiff. In addition, all particulars relating to the issue of "induce the defendant" to pay debts, particulars as to how, what actions were taken by plaintiff to "induce" the defendant to pay the debts. |
| 11) In relation to paragraph 38 of the counterclaim, this paragraph is too general and must be particularized. Defendant shall give particulars as to the acts, facts, matters, things and circumstances alleged to give rise to the allegation that the alleged proceedings in Turkey were "malicious, unnecessary etc.". Also must be provided the false and misleading statements alleged as well as the libels and slanders alleged, to whom made and when made and by what means made. |
| 12) In relation to paragraph 39 of the counterclaim, full particulars as to how the sum of $81,000. is composed is to be given to the plaintiff. As the paragraph now is framed, I need no reasons to strike out this or paragraph 38 from the counterclaim. |
[7] Costs in the cause.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
April 29, 1998