Date: 20040805
Docket: T-969-04
Citation: 2004 FC 1082
BETWEEN:
GRAND TANK (INTERNATIONAL) INC.
and DAVLIN HOLDINGS LTD.
Plaintiffs
and
DESTINY OILFIELD RENTALS
and DARIN M. HARDING
Defendants
HARGRAVE P.
[1] The Defendants, without either prior request or demand, filed the present motion in writing for particulars on 6 July 2004.
CONSIDERATION
[2] It is a usual courtesy and indeed a reasonable and sensible approach to request particulars either by a letter or by a demand for particulars. That this preliminary approach is no longer mandated by the Rules, as in former Rule 415(5), does not make the practice, as a sensible and time-saving approach for both litigants and the Court, any less desirable.
[3] The observations of Associate Senior Prothonotary Giles, in Covington Fabrics Corp. v Master Fabrics Ltd. (1993), 48 C.P.R. (3d) 521 (F.C.T.D.), as to the usual practice, still makes good sense:
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The usual procedure in this Court, that contemplated by Rules 415(5) and 319, is that the party seeking particulars will have made one or more requests in writing and upon being denied the particulars requested will serve and file a notice of motion for particulars specifying what particulars are required. The motion is usually supported by an affidavit indicating the need for particulars, that the party cannot plead without them, that the party has asked for the particulars and that the party does not have the particulars. Page 522 |
Indeed, the concept of requesting the furnishing of particulars, before making a motion for particulars, is endorsed in Practice and Procedure Direction No. 14, made in connection with the 1998 Federal Court Rules. In this instance had the Defendants used a letter of request, they would have discovered at an early date that the licencing agreement, which they wished to have physically produced, was in fact an oral agreement, something to be probed on examination for discovery. Instead, all concerned must deal with that issue on a motion. The portion of the motion dealing with production of the licencing agreement is dismissed.
[4] The request in the Notice of Motion for the production of the licence, as between the two Plaintiffs, is vague enough, but when reads through the Statement of Claim it is apparent what document the Defendants wished to have produced. However it would have been much more sensible to name the document in the Notice of Motion and indeed that is required. Less sensible and indeed totally improper, because it lacks specifics to direct all concerned to the problems and specific lack of particulars that the Defendants see in the Statement of Claim, is the first paragraph of the Notice of Motion:
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1. An Order directing the Plaintiffs to provide further and better particulars as to the allegations set out in the Statement of Claim of the within action claiming that the Defendants deliberately and knowingly infringed, or caused to be infringed the Plaintiff's Canadian Patent no. 2,219,053.
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Opposing counsel and indeed the Court ought not have to plough through an affidavit in support of the motion and hunt and seek in the Statement of Claim in order to try to determine what the particular motion thrust of the motion. When one takes into account the affidavit and the Defendants' written representations, apparently particulars are sought as to four paragraphs, but even then, as between the affidavit and the written representations, there seem to be differences in what the Defendants seek. Further, taking what appear to be key words from paragraph 1 of the Notice of Motion, "... as to the allegations set out in the Statement of Claim of the within action claiming that the Defendants deliberately and knowingly infringed, or caused to be infringed the Plaintiff's Canadian Patent no. 2,219,053" those words are nowhere to be found in the Statement of Claim in that exact form, but are a paraphrase of a portion of paragraph 12 of the Statement of Claim. All of this leads to uncertainty both as to what is being sought and assuming success, the scope of the order which ought to issue. An explanation of and a guide to the form and function of a notice of motion is in order.
[5] To begin, Stroud's Judicial Dictionary of Words and Phrases, Sweet & Maxwell, London, defines notice as "a direct and definite statement of a thing, as distinguished from supplying materials from which the existence of such thing may be inferred", relying upon Baron Parke's Reasons in Burgh v. Legge (1839) 5 M & W 418 at 420 and following, 151 ER 177 and Vallee v. Dumergue (1849) 4 Ex. 290 at 301 and following, 154 ER 1221, being the judgment of the court delivered by Baron Alderson. Key here is that the contents of a notice must be specific and are not to be implied from some other source.
[6] As to a motion, it is "... an application requesting a court to make a specified order": Garner on Modern Legal Usage, 2nd edition, 1995, Oxford University Press. Similarly, Black's Law Dictionary, 7th edition, West Group 1999 defines a motion is "a written or oral application requesting a court to make a specified ruling or order.".
[7] This idea of a notice of motion as giving notice that a court will be moved to make a precise order or ruling is reflected in the rules of a number of courts, however I shall begin with pre-1998 Federal Court Rule 319(1)(b) that any application to the Court must be made by a motion and indicated by a notice of motion setting out, among other things "(b) the precise relief sought; ...". This evident and sensible requirement is now reflected in Rule 359, which begins with a mandatory provision:
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359. Notice of motion - Except with leave of the Court, a motion shall be initiated by a notice of motion, in Form 359, setting out
...
(b) the relief sought; |
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359. Avis de requête - Sauf avec l'autorisation de la Cour, toute requête est présentée au moyen d'un avis de requête établi selon la formule 359 et précise : ...
b) la réparation recherchée; |
At first blush this differs from a previous rule, which referred to "the precise relief sought" (emphasis added), but it does not, for it is mandatory under the new Rules that the notice of motion be as set out in Form 359. Form 359 contains the following:
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THE MOTION IS FOR (the precise relief sought).
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In the present instance one must guess at the relief sought: certainly there is no precise notice of what the Defendants seek. Nor on the face of the Statement of Claim is it clear just what particulars a reasonably intelligent individual might require, let alone a sophisticated defendant, versed in the art of separating gritty bits from drilling fluid and recycling the fluid, might require.
[8] All of this has spawned a reply motion record elaborating upon what the Defendants seek: a great amount of paper bearing on a relatively brief Statement of Claim. However the reply motion record does contain a sensible suggestion that, if the notice of motion is defective, the Defendants be allowed to clarify the particulars sought.
[9] As to a possible outcome Plaintiffs' counsel referred to Burns Foods (1985) Ltd. v. Maple Lodge Farms Ltd. (1994), 75 F.T.R. 39 (F.C.T.D.), where Mr Justice Cullen struck out a motion because it did not comply with former Rule 319(c), a rule requiring not the setting out of the precise relief sought, but rather the grounds that the party bringing the motion intended to argue. Thus the present situation, while not similar to that in Burns Foods, is analogous and Burns Foods is relevant. There Mr Justice Cullen took a strict approach, particularly in that the applicant on the motion had been put on notice by the respondent as to the perceived non-compliance of the notice of motion with the Rules. In the present situation solicitors for the Plaintiffs wrote to solicitors for the Defendants to bring to their attention deficiencies in the Notice of Motion, including that there had been no earlier demand for particulars and that, more important in the view of solicitors for the Plaintiffs, the relief sought in the Notice of Motion was vague and imprecise. Solicitors for the Plaintiffs went on to suggest that the motion be abandoned and a new notice of motion, in a more precise form, be served. In Burns Foods, as I say, Mr Justice Cullen struck out the defective notice of motion, but did stop short of ordering costs on a solicitor and client basis.
[10] While Mr Justice Cullen decided Burns Foods under the old rules there is, as I have pointed out, no difference between the substance of the pre-1998 Rules and the substance of the 1998 Rules, taken together with the required form of notice of motion: both sets of Rules require that the precise relief sought on a motion be set out in the notice of motion.
[11] The courts are available to assist individuals, as litigants, when they are unable to resolve substantive issues giving rise to legal proceedings. The courts are also available to assist both litigants and counsel who are unable to work toward and reach an agreement or an accommodation on procedural matters. This concept of working toward an accommodation, so as to avoid expensive and time-consuming interlocutory proceedings, is facilitated by the Rules and by the practices which have developed. Here I return to the decision of Associate Senior Prothonotary Giles in the Covington (supra) case and the accepted practice of either writing a letter seeking particulars or of making a more formal demand for particulars, as virtually a precondition to a motion for particulars. Such a two-step procedure allows counsel both time to reflect, to negotiate and to perhaps reach agreement as to the required particulars: that certainly would have been the situation here, as to part of the motion, if the request for the production of licence, which the Defendants now know does not exist in written form, had been made initially by letter.
CONCLUSION
[12] Returning to Burns Foods (supra), the Plaintiffs' motion to strike out a motion because it did not comply with the Rules, was allowed. That is a fairly severe remedy to apply in all instances and all the more so where there may be a proper need for particulars for pleading. In this instance I prefer the suggestion of counsel for the Defendants as to amendment.
[13] The Defendants may have 30 days within which to serve and file a notice of motion amended in conformity with usual practice, the Rules and these Reasons. The possibilities are either that the particulars sought be specifically set out in the notice of motion, or be specifically set out in a demand for particulars or a letter demand, attached as a schedule to the motion. The Plaintiffs may have 21 days within which to respond. Hopefully this extended time frame will allow at least an attempt at reaching an agreed resolution.
[14] The Defendants have been unsuccessful to the extent of a dismissal of that portion of their motion dealing with the production of the licence, which an informal enquiry, before the motion was served and filed, would have indicated was an oral licence. The Defendants have been unsuccessful on the balance of the motion, to the extent that, rather than having the motion dismissed, have been given leave to amend. Yet all of this has costed the Plaintiffs unnecessary time and expense. Therefore costs will be payable forthwith to the Plaintiffs as a precondition to the Defendants filing amended material, in a lump sum, based on Tariff B, mid-range in Column IV, at $660.00.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
5 August 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-969-04
STYLE OF CAUSE: Grand Tank (International) Inc. et al. v. Destiny Oilfield Rentals et al.
REASONS FOR ORDER BY: Hargrave P.
DATED: 5 August 2004
WRITTEN REPRESENTATIONS BY:
David J McGruder & Craig A Ash FOR PLAINTIFFS
J Jay Haugen FOR DEFENDANTS
SOLICITORS ON THE RECORD:
Oyen Wiggs Green & Mutala FOR PLAINTIFFS
Barristers & Solicitors
Vancouver, BC
Parlee McLaws LLP FOR DEFENDANTS
Barristers & Solicitors
Edmonton, Manitoba