Federal Court Decisions

Date: 20010905

Docket: T-611-01

Neutral citation: 2001 FCT 992

Montréal, Quebec, September 5, 2001

Before:            Richard Morneau, Prothonotary

BETWEEN:

                                                                FORTIER 2000 LTÉE

                                                                                                                                                           Plaintiff

                                                                                  and

                                                                MARCEL MATIÈRE

                                                                                                                                                      Defendant

                                                                                  and

                                                             MARCEL MATIÈRE and

                                                         BÉTON PROVINCIAL LTÉE

                                                                                                                                             Cross-plaintiffs

                                                                                  and

                                                                FORTIER 2000 LTÉE

                                                                                                                                           Cross-defendant

                                               REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, PROTHONOTARY:

[1]                 The plaintiff made two motions against the defendant's defence and counterclaim ("the defence"). The first of these sought to strike paragraphs from the defence. The other motion sought further particulars of the same defence.

[2]                 The motion to strike must be decided entirely in accordance with s. 221(1)(b) of the Federal Court Rules (1998) ("the Rules"), since only that paragraph was properly pleaded by the plaintiff in its notice of motion. Since consequently paras. 28, 30, 31, 32 and 39 of the defence are challenged via s. 221(1)(c), those paragraphs clearly should not be struck out.

[3]                 What is more, even if one were prepared to consider the latter paragraphs of the defence in examining paras. 5 to 8, 35, 37, 44 and 46 of the defence, the plaintiff's motion would also have to be dismissed since it is far from clear and obvious to me that any of the aforementioned paragraphs is simply irrelevant, or at least so irrelevant that it should be struck out here. I agree completely with the written representations submitted by the defendant against the motion, namely that these paragraphs of the defence provide a context, a background, which could be very useful to the Court on the merits in gaining a better understanding of the scope of the parties' arguments.

[4]                 Although the notice of motion mentions it, para. 38 of the defence is not mentioned again in the affidavit and the written arguments made in support of the motion. Paragraph 38 therefore should not be struck out.

[5]                 Moreover, the plaintiff has not submitted a valid and relevant affidavit in support of its motion establishing definite harm that would result from keeping the paragraphs challenged by the plaintiff in the defence.

[6]                 For these reasons, the plaintiff's motion to strike is dismissed with costs.

[7]                 On the same party's motion for particulars, it appears to me that each of the paragraphs of the defence mentioned in the motion meets the test for concluding that additional particulars are not necessary at this stage of the proceedings, namely that in my view the disputed paragraphs of the defence contain sufficient detail for the plaintiff to frame an intelligent response and accordingly serve and file a reply and cross-defence.

[8]                 Before making an order for particulars, the Court must consider whether a party has enough information to be able to understand the opponent's position and prepare a responsive answer, whether 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).

[9]                 In Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al. (1979), 43 C.P.R. (2d) 285 (F.C.T.D.), at 287, Marceau J.A. explained the extent to which at the pleadings stage a defendant is entitled to particulars about the plaintiff's evidence:

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.)

[10]           The purpose of a motion for particulars is not the same as an examination for discovery of the opposing party and, as indicated in Embee, supra, the purpose of such a motion 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, also referring to Embee, referred to this very 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.

(Citation omitted.)

[11]            According to the very wording of the affidavit filed by the plaintiff in support of its motion, it appears that the latter is managing to take up a position on whether this or that component raised by the defendant in its defence is present in its products. Any further particulars are not required at this stage and are more in the nature of research which could possibly be done at the stage of the examination for discovery.

[12]            For these reasons, this motion for particulars by the plaintiff will be dismissed with costs.

[13]            The plaintiff will serve and file its reply and cross-defence on or before October 5, 2001.

Richard Morneau Prothonotary

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE:

STYLE OF CAUSE:

T-611-01

FORTIER 2000 LTÉE

                                                                 Plaintiff

and

MARCEL MATIÈRE

                                                             Defendant

and

MARCEL MATIÈRE and

BÉTON PROVINCIAL LTÉE

                                                    Cross-plaintiffs

and

FORTIER 2000 LTÉE

                                                  Cross-defendant

PLACE OF HEARING:Montréal, Quebec

DATE OF HEARING:August 27, 2001

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATED:September 5, 2001

APPEARANCES:

Philippe Leroux		for the plaintiff/cross-defendant

Florence Lucas		for the defendant and cross-plaintiffs

SOLICITORS OF RECORD:

Brouillette, Charpentier, Fortin Montréal, Quebec		for the plaintiff/cross-defendant

Gowling, Lafleur, Henderson Montréal, Quebec

for the defendant and cross-plaintiffs