Date: 20051101
Docket: T-937-05
Citation: 2005 FC 1478
Montréal, Quebec, the 1st day of November, 2005
PRESENT: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
FIELDTURF INC.
Plaintiff/
Defendant to counterclaim
and
TRIEXE MANAGEMENT GROUP INC.
and
LES INSTALLATIONS SPORTIVES DEFARGO INC.
Defendants/
Plaintiffs by counterclaim
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This case involves two motions by the plaintiff and defendant to counterclaim (the plaintiff) pursuant to section 174 and subsection 181(2) of the Federal Courts Rules (the Rules) to order the defendants and plaintiffs by counterclaim (defendant Triexe and defendant Defargo) to provide it with further and better particulars on certain paragraphs of their respective defences and counterclaims.
Legal Rules Concerning Particulars
[2] The standards to be met by pleadings in terms of particulars are set out in section 174 and subsection 181(2) of the Rules, which read as follows:
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174. Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved . |
174. Tout acte de procédure contient un exposé concis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l’appui de ces faits. |
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181(2) On motion, the Court may order a party to serve and file further and better particulars of any allegation in its pleading.
[Emphasis added] |
181(2) La Cour peut, sur requête, ordonner à une partie de signifier et de déposer des précisions supplémentaires sur toute allégation figurant dans l’un de ses actes de procédure.
[Non souligné dans l’original.] |
[3] In Glaxo Canada Inc. v. Department of National Health and Welfare of Government of Canada et al. (1987), 15 C.P.R. (3d) 1 (F.C.T.D.), at page 10, Rouleau J. makes the following comment concerning the standard in terms of particulars:
Proper pleadings define with precision and clarity the question in dispute between the litigants. Both parties are entitled to fair notice of the case which they are bound to meet so that they may procure evidence relevant to the issues disclosed by the pleadings.
[4] However, any request for particulars also appears to be subject to certain restrictions. In short, before making an order on the matter, the Court must consider whether a party has enough information to understand the opposing party’s position and prepare an effective 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.)
[5] 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. explains the extent to which the defendant is entitled to obtain, at the pleadings stage, details concerning the evidence of the plaintiff. In my view, the following comments by Marceau J. may be applicable, with the necessary adjustments, to the request for particulars by the plaintiff concerning the disputed defences:
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.
[Emphasis added.]
[6] Here, moreover, since the affidavit submitted by the plaintiff in support of each of its motions is extremely brief and was prepared by one of its own lawyers, the requirements in terms of particulars will have to be assessed from a reading of the respective defences themselves. In fact, as the Court noted at page 522 of Covington Fabrics Corp. v. Master Fabrics Ltd. (1993), 48 C.P.R. (3d) 521:
The absence of a request and of an affidavit setting out with some particularity what particulars are required can be waived if the need for particulars is obvious from the file. That the party cannot plead without the particular might also be obvious from the file and that the party does not have the particulars might be assumed in a proper case.
(See also Omark Industries Inc. v. Windsor Machine Co. Ltd. (1980), 56 C.P.R. (2d) 111, page 112, at the bottom of the page.)
[7] Applying the principles set out above, it will be sufficient for the defendants Triexe and Defargo to file within fifteen (15) days of these Reasons for Order and Order the following particulars respectively:
- Concerning Defargo’s Defence
1. With respect to paragraph 11 of the Statement of Defence:
(a) During which period did the Defendant’s website contain the text cited at paragraph 15.2 of the Statement of Claim?
2. With respect to paragraph 17 of the Statement of Defence:
(a) When was it found that the use of cryogenic rubber did not provide an appreciable advantage?
3. With respect to paragraph 18 of the Statement of Defence:
(a) When was the decision made?
(b) Who made the decision?
4. With respect to paragraph 19 of the Statement of Defence:
(a) For each potential client, including those specified at paragraph 17 of the Amended Statement of Claim, how did Defargo inform them that it was going to use ambient rubber?
(b) Which individual at Defargo transmitted that information to the potential clients?
The other details requested by the plaintiff need not be filed. In view of the divided outcome, no costs are awarded.
- Concerning Triexe’s Defence
1. With respect to paragraph 11 of the Statement of Defence:
(a) During which period did Sportexe make a brochure, containing the text cited at paragraph 15.3 of Plaintiff’s Amended Statement of Claim, available to the public?
2. With respect to paragraph 17 of the Statement of Defence:
(a) When was it found that the use of cryogenic rubber did not provide an appreciable advantage?
3. With respect to paragraph 18 of the Statement of Defence:
(a) For each potential client, including those specified at paragraph 17 of the Amended Statement of Claim, how did Defargo inform them that it was going to use ambient rubber?
(b) Which individual at Defargo transmitted that information to the potential clients?
The other particulars requested by the plaintiff need not be filed. In view of the divided outcome, no costs are awarded.
[8] Concerning the plaintiff’s request for an extension of time, the plaintiff shall serve and file its response and defence by counterclaim within twenty (20) days of the filing of the particulars authorized above.
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“Richard Morneau” |
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Prothonotary |
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-937-05
FIELDTURF INC. v. TRIEXE MANAGEMENT GROUP INC. and LES INSTALLATIONS SPORTIVES DEFARGO INC.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 24, 2005
REASONS FOR ORDER BY: Richard Morneau, Prothonotary
DATED: November 1, 2005
APPEARANCES:
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Nancy Bishai |
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FOR THE PLAINTIFF/DEFENDANT TO COUNTERCLAIM |
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Pascal Lauzon |
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FOR THE DEFENDANTS/PLAINTIFFS BY COUNTERCLAIM |
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SOLICITORS OF RECORD:
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SPIEGEL SOHMER Montréal, Quebec |
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FOR THE PLAINTIFF/DEFENDANT TO COUNTERCLAIM |
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BCF, LLP Montréal, Quebec |
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FOR THE DEFENDANTS/PLAINTIFFS BY COUNTERCLAIM |