T-2164-89
B E T W E E N:
THE LUBRIZOL CORPORATION AND
LUBRIZOL CANADA LIMITED
Plaintiffs
- and -
IMPERIAL OIL LIMITED
and its subdivision PARAMINS
Defendants
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
At the conclusion of the hearing of this motion for leave to file a Fresh Amended Statement of Defence and Counter Claim, I indicated how I would rule on the motion and was asked for written reasons. I then reserved my formal order and agreed to issue it with short reasons. These are those reasons.
As I indicated, it was my view, that leave should not be given to file amended pleadings, if they might be the subject of a successful motion to strike. Parts of pleadings will be struck where there are no allegations of fact pleaded to support general allegations even though evidence is not required to be pleaded. In such a case, the general allegations will usually be struck with leave. Where however, it is admitted that the party has no facts to support the general allegations, the general allegations will be struck without leave. That is not to say that a further motion to amend must be refused if supporting facts are in the mean time discovered. If, of course, the whole pleading is struck without leave, a judgment might have been obtained and that would preclude any amendments.
I also indicated that where a general allegation of, say, invalidity is made, and facts specifically supporting with particulars one instance of that cause of invalidity are pleaded, it is permissible to enlarge the allegation to include other instances of that cause not known to the party pleading, but known to the other party.
It would not be permissible to attempt to expand the allegation to include different causes of invalidity of which the plaintiff has no knowledge. Further, an admission of such ignorance would result in a striking without leave of the allegation of such additional unknown causes.
In my view, it is difficult to determine whether the attempt to include matters unknown is an attempt to include matters of a different type or instances of the same type.
A draft proposed Fresh as Amended Statement of Defence and Counter Claim was submitted and ordered sealed after the hearing. Except for general objections with regard to underlining, no objection was taken before me to any of the proposed amendments, except some of those contained in paragraphs 13 and 14.
Paragraph 13 ran for nearly 2 doubled spaced foolscap pages and was complicated by the failure to divide it into subparagraphs. Counsel agreed to attempt to remedy that failure.
The first 22 lines of paragraph 13 particularize certain specific sales and expand to others like them and no objection was taken. The next 11 lines deal with a specific Lubrizol product. The plaintiff has no quarrel with the specificity of these lines save that it argues that this product is covered by only one of the claims in the patent and the pleadings should so indicate. The defendant points out that if it was so limited, it would make the allegations of dubious value because that particular claim in not raised in this litigation. The defendant also alleges the Lubrizol product is not covered solely by the one claim. In order to determine the issue, it is necessary to construe the patent and relate it to the product in question. It is my view, that this matter should be resolved by the trial judge and I will not decide whether the allegation with respect to this product should be tied to a single claim in the patent.
The first 3 of the last 6 lines of page 5, refer to further particulars of sales and offerings of products of the same type as in the proceeding pleading and the 3 lines are acceptable for inclusion in a pleading of this nature.
The final 3 lines of page 5 and the first 4 lines of page 6, deal with a specific Lubrizol product. It is alleged that this product was sold, but it is admitted that the defendant has no particulars of sales. This is a non-supported allegation which cannot be allowed. The next 3 lines would expand the proceeding lines, as the proceeding lines cannot be permitted nor can the lines purporting to expand the allegation to the rest of the type.
The last 3 lines of paragraph 13, do not apparently refer to any specific type, but attempt to hold open the door for the exploration of types of invalidity regarding which no specific particulars have been given. These 3 lines should not be included in any amendment.
With regard to paragraph 14, the last 3 lines on page 6 and the first 4 lines on page 7, deal with the product mentioned in the last 3 lines of page 5. This allegation in paragraph 14 refers to the sales of this product being particularized above. The only particulars of sales is found in paragraph 13, which as stated hereinabove indicates the particulars of the sale are not known, so this allegation can not stand. The last 3 of the first 7 lines would expand with further instances of the type of the proceeding product, as the allegations to that product are not sufficiently particularized the attempt to expand the instances of the type must also fail.
The last 3 lines do not apparently refer to any specific type, and if that is so, they can not be used to hold open the door for fishing expedition. If I am wrong, and the lines attempt to expand a specific allegation, the lines are redundant as the only existence of a type sufficiently particularized in paragraph 14 has already been relied on for expansion purposes in the first 3 of the last 6 lines of page 6.
Because of these allegations unsupported by fact, portions of the draft Amended Defence and Counter Claim could be struck if the amendment were to be permitted. This amendment is therefore not permitted. However, no objections were maintained with regard to the remainder of the proposed amendment so a further attempt to amend will be permitted.
With regard to the matter of underlining, it may well be that there is nothing in the Rules to require underlining of amendments. The practice has, however been hallowed over the years and is often of the greatest assistance to the Court. In this particular case, there have already been several amendments and given the record of these litigants, the possibility of yet more looms. It appears that in this case the usual practice of cumulative underlining of amended portions should be altered. For the purposes of further consideration of this motion, an underlined draft has been submitted (and ordered sealed). It will be available for any appeals of my order. When any future amendments are filed it will be sufficient, if only the amendments made subsequent to this order are underlined or sidelined. Such amended pleadings should indicated that underlining has been omitted for amendments made prior to this date.
ORDER
The motion for leave to file an amendment in the form submitted is denied. The form said to be annexed to the notice of motion and the blacklined copy thereof are to be sealed in the sealed motion record envelope.
The time for delivery of an affidavit of documents is expanded from 30 to 60 days.
Costs of this motion are to be in the cause.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
April 24, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2164-89
STYLE OF CAUSE: THE LUBRIZOL CORPORATION ET AL.
- and -
| IMPERIAL OIL LIMITED ET AL. |
DATE OF HEARING: APRIL 7, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: APRIL 24, 1997
APPEARANCES:
Mr. Donald H. MacOdrum
For the Plaintiffs
Mr. William H. Richardson
Mr. Conor McCourt
For the Defendants
SOLICITORS OF RECORD:
Lang Michener
Barristers & Solicitors
BCE Place
Box 747,
2500-181 Bay Street
Toronto, Ontario
M5J 2T7
For the Plaintiffs
McCarthy Tétrault
Barristers & Solicitors
4700 TD Bank Tower
P.O. Box 48,
Station Toronto Dominion
Toronto, Ontario
M5K 1E6
For the Defendants
FEDERAL COURT OF CANADA
Court No.: T-2164-89
Between:
THE LUBRIZOL CORPORATION ET AL.
Plaintiffs
- and -
| IMPERIAL OIL LIMITED ET AL. |
Defendants
REASONS FOR ORDER AND ORDER