Federal Court Decisions

Date: 20070419

Docket: T-2227-06

Citation: 2007 FC 413

ADMIRALTY ACTION IN PERSONAM

BETWEEN:

OCÉAN NAVIGATION INC.

Plaintiff

and

ABITIBI-CONSOLIDATED INC.

Defendant

REASONS FOR ORDER

MORNEAU P.

[1]               This is essentially a motion by the Plaintiff under rules 174 and 181 of the Federal Courts Rules (the rules) for an order directing the Defendant to provide further and better particulars of certain paragraphs of its statement of defence.  This motion takes place in the context of an admiralty case where the Plaintiff claims from the Defendant a contribution in general average further to the grounding of a barge on December 3^rd, 2004.

The law in respect of particulars

[2]               Before making an order in respect of particulars, the Court must however evaluate whether a party has enough information to be able to understand the other party's position and to prepare a responsive answer, be it a defence or a reply.  (See Astra Aktiebolag v. Inflazyme Pharmaceuticals Inc. (1995), 61 C.P.R. (3d) 178 (F.C.T.D.), at 184.)

[3]               In Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al. (1979), 43 C.P.R. (2d) (F.C.T.D.), at page 287, Marceau J. stated the extent to which the defendant is entitled to be furnished with particulars of the plaintiff's case at the pleading stage:

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.

(My emphasis)

[4]               In its motion, the Plaintiff states, inter alia, that the Defendant in its statement of defence has failed to provide the material facts and the necessary particulars of its allegations, which allegations must be seen therefore as vague conclusions of law and not valid allegations of material facts.

[5]               On April 12, 2007, the Defendant provided the Plaintiff’s counsel with a series of particulars, which seek to answer, save one, all demands for particulars listed in the Plaintiff’s notice of motion.

[6]               It must be recalled, in addition, that the purpose of a motion for particulars is not the same as an examination for discovery of the other party, and that the purpose of such a motion, as stated in Embee, supra, is not necessarily to enable the defendant to know all the facts on which the action is based.  In Quality Goods I.M.D. Inc. v. R.S.M. International Active Wear Inc. (1995), 63 C.P.R. (3d) 499 (F.C.T.D.), Dubé J. of this Court, himself citing Embee, referred precisely to this distinction, as follows:

At discovery a party is entitled to be informed of any and every particular which will enable it to prepare its case for trial.  However, before the filing of its defence the defendant is only entitled to particulars which are necessary for filing its defence.  A request for particulars before defence ought not to be a fishing expedition and in any event is not as broad as discovery.¹

_________________

1        Embee Electronic Agencies v. Agence Sherwood Agencies Inc.        (1979), 43 C.P.R. (2d) 285.

Analysis

[7]               Upon a review of the impugned paragraphs, the motion material of the parties, and upon listening to counsel, I am of the view that the Plaintiff does not need any further particulars, including with respect to point 1c) of the Plaintiff’s motion, for it to reply intelligently to the statement of defence and to state properly the grounds of reply on which it intends to rely.  The statement of defence at bar, in my opinion, and the particulars furnished on April 12, 2007, provide the Plaintiff with sufficient particulars to enable it to understand the position of the Defendant and to appreciate sufficiently the facts on which it is founded.

[8]               The affidavit provided by the Plaintiff in support of its motion does not convince me in addition otherwise.

[9]               I do not consider also that the absence of the particulars sought impairs the Plaintiff with its assessment of whether it should consider bringing any of the interlocutory motions alluded to in paragraph 18 of its written representations.

[10]           Finally, its request under rule 206 with respect to paragraph 15 of the statement of defence is also not justified considering the clarification provided by the Plaintiff on April 12, 2007.

[11]           This motion, therefore, shall be denied with costs in the cause.  An order will be issued in accordance with these reasons.

“Richard Morneau”

Montréal, Quebec

April 19, 2007

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-2227-06

STYLE OF CAUSE:                          OCÉAN NAVIGATION INC.

                                                            Plaintiff

                                                            and

                                                            ABITIBI-CONSOLIDATED INC.

                                                            Defendant

PLACE OF HEARING:                    Montréal, Quebec

DATE OF HEARING:                      April 16, 2007

REASONS FOR ORDER BY:         RICHARD MORNEAU, ESQ., PROTHONOTARY

DATED:                                             April 19, 2007

APPEARANCES:

SOLICITORS OF RECORD: