T-945-97
MONTRÉAL, QUEBEC, THIS 14th DAY OF AUGUST 1997
PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY
BETWEEN:
BALCORP LIMITED,
Plaintiff,
AND
AMERICAN PRESIDENT LINES LTD.,
Defendant.
ORDER
The plaintiff's motion is dismissed. Costs in the cause.
Richard Morneau
Prothonotary
Certified true translation
C. Delon, LL.L.
T-945-97
BETWEEN:
BALCORP LIMITED,
Plaintiff,
AND
AMERICAN PRESIDENT LINES LTD.,
Defendant.
REASONS FOR ORDER
RICHARD MORNEAU, ESQ.,
PROTHONOTARY:
This is a motion by the plaintiff under subsection 415(3) of the Federal Court Rules (the "Rules") for an order that the defendant provide it with further and better particulars of certain paragraphs in its statement of defence.
Although this motion was filed under Rule 415, it seemed to me in the course of argument by counsel for the plaintiff that the plaintiff's aim would very probably have been better achieved if the motion had been filed under Rule 413. In practice, that rule obliges a party to admit, plead lack of knowledge of or deny each of the allegations made by the other party. In this instance, the defence does not really follow that rule, and ultimately it is this omission that has prompted the plaintiff to try to determine, inter alia, whether the defendant has addressed the same factual material in its pleading as was raised by the plaintiff.
However, since the instant motion was brought strictly under Rule 415, it will be disposed of accordingly, although the defendant might consider amending its defence to comply with Rule 413.
The law with respect to particulars
Before making an order with respect to particulars, the Court must ask whether a party has sufficient information to understand the position of the adverse party and to prepare a proper response, whether it be a defence or a reply. (See Astra Aktiebolag v. Inflazyme Pharmaceuticals Inc. (1995) 61 C.P.R. (3d) 178 (F.C.T.D.), at page 184.)
In the decision in Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al. (1979), 43 C.P.R. (2d) 285 (F.C.T.D.), at page 287, Marceau J. explained the extent to which the defendant is entitled to obtain particulars as to the plaintiff's evidence, at the pleadings stage. I believe that the following observations by Marceau J. may apply, mutatis mutandis, to the instant request for particulars:
| 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. |
[No emphasis in the original]
Analysis
The plaintiff lists the particulars it is seeking as follows in its motion for particulars:
| (a) With respect to paragraph 9 of the Statement of Defence, provide a copy of the Tariff referred to pursuant to Rule 407(2) of the Federal Court Rules; |
| (b) With respect to paragraph 1 of the Statement of Defence, Defendant shall specify which cargo it carried for Plaintiff during the material period of time, that is the 1996 shipping season; |
| (c) With respect to paragraph 3 of the Statement of Defense, Defendant shall identify the representatives of the Plaintiff who contacted Ms. Gisèle Sherrard, when and what was the substance of the discussion between them; |
| (d) With respect to paragraph 5 of the Statement of Defense, Defendant shall provide better particulars of the instructions referred to in said paragraph; and |
| (e) With respect to paragraph 9 of the Statement of Defense, Defendant shall identify the "applicable laws" referred to therein; |
With respect to point (a), counsel for the defendant said at the hearing that the document the plaintiff was seeking would be supplied to it. There is therefore no need to dispose of that point.
With respect to points (b), (c) and (d), I am of the view that the information sought is in fact, or must be presumed to be, within the knowledge of the plaintiff. The defendant will not have to provide further particulars in respect thereof. However, it should consider complying with Rule 413, having regard to the comments made at the beginning of this analysis.
With respect to point (e), I do not believe that the mere use of the expression "applicable laws" in a pleading must be grounds for requiring the defendant to disclose anything else to the plaintiff. It is the facts, and not the law, that are to be pleaded, except where Rule 409 applies; this not the case here.
The plaintiff's motion will therefore be dismissed; costs in the cause.
Richard Morneau
Prothonotary
Montréal, Quebec
August 14, 1997
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
Court file No. T-945-97
between
BALCORP LIMITED,
Plaintiff
" and "
AMERICAN PRESIDENT LINES LTD.,
Defendant.
REASONS FOR ORDER
| FEDERAL COURT OF CANADA |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| COURT FILE NO: T-945-97 |
| STYLE OF CAUSE: BALCORP LIMITED, |
| Plaintiff, |
| AND |
| AMERICAN PRESIDENT LINES LTD., |
| Defendant. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: August 11, 1997 |
| REASONS FOR ORDER BY:Richard Morneau, Esq., Prothonotary |
| DATE OF REASONS FOR ORDER: August 14, 1997 |
| APPEARANCES: |
| Fawaz El Malki for the plaintiff |
| Laurent Nahmiash for the defendant |
| SOLICITORS OF RECORD: |
| Fawaz El Malki for the plaintiff |
| Sproule, Castonguay, Pollack |
| Montréal, Quebec |
| Laurent Nahmiash for the defendant |
| Byers Casgrain |
| Montréal, Quebec |