Date: 20041014
Docket: T-854-04
Citation: 2004 FC 1421
Ottawa, Ontario, this 14th day of October, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
GARY ALEXANDER TYHY
and HANDY-HITCH MANUFACTURING INC.
Plaintiffs
- and -
SCHULTE INDUSTRIES LTD.
Defendant
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Plaintiffs in this case hold patent number 2,241,162 (the '162 patent) for an off-set hitch for use in towing an implement. The Plaintiffs, in a statement of claim filed with this Court on April 30, 2004, claim that the Defendant has developed an off-set hitch, called the Schulte Flex-Arm, which infringes the '162 patent.
[2] The Defendant has filed a motion to strike, or, in the alternative, a demand for further and better particulars with respect to certain portions of the Plaintiffs' statement of claim.
Analysis
1. Motion to Strike
[3] The Defendant argues that, under s. 221(1) of the Federal Court Rules, 1998, a motion to strike may be sought, and the Court may strike a statement of claim, on the ground that it discloses no reasonable cause of action or defence. The Applicant relies on the decision of Justice Cullen in Chart Industries Ltd. v. Hein-Werner of Canada Ltd., (1988), 25 C.P.R. (3d) 373, at p. 2, where he stated that:
In general, under our system of pleading, a statement of claim for an infringement of a right should clearly show
(a) facts by virtue of which the law recognizes a defined right as belonging to the plaintiff, and
(b) facts that constitute an encroachment by the defendant on that defined right of the plaintiff.
[4] The Defendant submits that the Plaintiffs merely set out a "verbatim repetition" of the elements of their claims of the '162 Patent and that they do not let the Defendant know what the allegedly infringing off-set hitch does that is allegedly infringing the '162 patent. While that may satisfy part (a) of the test in Chart Industries, the Defendant argues that the Plaintiffs have failed to meet the second part of that test. Specifically, they have failed to set out the facts that constitute an encroachment by the Defendant on the rights of the Plaintiffs.
[5] Generally speaking, the most recent jurisprudence establishes a high threshold for striking a statement of claim. The test for striking out a pleading for failing to disclose a reasonable cause of action is whether it is plain and obvious, assuming that the facts as stated in the statement of claim can be proven, that the statement of claim discloses no reasonable cause of action (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at paras. 30 to 33; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, at para. 15). As stated in Odhavji, "It is only if the statement of claim is certain to fail because it contains a "radical defect" that the Plaintiff should be driven from the judgment". What constitutes a "radical defect" will depend on the facts of each case. Justice Layden-Stevenson in Pharmaceutical Partners of Canada Inc. v. Faulding (Canada) Inc., [2002] F.C.J. No. 1305, at para. 13, described the standard for striking out pleadings as follows:
... As a result [of Hunt], and notwithstanding the desirability of proper pleading, the standard or test for striking out a pleading has been determined. It was recently described by the Federal Court of Appeal in Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans), 2002 FCA 255, [2002] F.C.J. No. 882. Mr. Justice Sexton, speaking for the Court, determined that although a pleading may be very broad and encompassed in general terms, it should not be struck out so long as a cause of action, however tenuous, can be gleaned from a perusal of the statement of claim. The onus, on the party moving to strike, is heavy and it must be shown that it is beyond doubt that the case cannot possibly succeed at trial. Similarly, in Sweet v. Canada (1999), 249 N.R. 17 (F.C.A.), Mr. Justice Décary, speaking for the Court, stated that although some elements may be missing and others incomplete, if the pleading contains enough information to allow the opposing party to know with some certainty the case to be met, the pleading will not be struck. ...
[6] Turning to this claim, it appears to me that the situation is not overly complex. The alleged infringement relates to a piece of equipment in respect of which the Plaintiffs hold the '162 patent. In paragraph 10 of the statement of claim, the Plaintiffs describe seven features of the Schulte Flex Arm Devices. These seven alleged attributes are descriptions of physical characteristics. It seems to me that the Defendant ought to be able to review this list and determine whether its Schulte Flex Arm Devices do or do not do the things that are described in that list. This is the essence of the claim. To my mind, it is irrelevant that the words used to describe the attributes of the device mirror those in the claim.
[7] In my view, the Defendant is relying too much on form and not enough on the substance of the claim. It is true that, in Chart Industries, the statement of claim was struck. In that case, however, the statement of claim contained one simple statement that the Defendant has "made, used, offered for sale, sold or otherwise distributed in Canada floor anchoring systems . . . which fall within each and everyone of the claims of Patent No. 1,185,584." Even absent the later jurisprudence that has moved beyond a strict application of a two-part test, the statement of claim in issue in Chart Industries appears to have been brief beyond the pale. However, here, the Plaintiffs have carefully outlined the elements of the claim and tied them to the apparatus in issue. On the facts of this case, that is sufficient.
2. Demand for Particulars
[8] In the alternative, the Defendant requests further and better particulars, specifically with respect to the claim that the Schulte Flex-Arm Devices include a feature described as "a frame having wheels where the frame and wheels define an intended direction of working movement, and first and second ends spaced transversely of the direction of movement." Simply put, the Defendant wants the Plaintiffs to point out those parts of the Schulte Flex-Arm Devices that could define a direction of movement and to state how those parts define an intended direction of working movement. The Defendant claims that, being unable to identify which portions of the Schulte Flex-Arm Devices could define a direction of movement, or what that direction might be, it has been unable to prepare an adequate Statement of Defence. Although the Defendant originally demanded particulars with respect to a number of the elements of the Statement of Claim, this motion is limited to this one request only.
[9] To be successful on this motion, the Defendant must establish that:
(a) the information sought must be necessary, or material, particulars;
(b) the particulars are not within the Defendant's knowledge, or the pleader has no cause to assume that they are within the knowledge of the party demanding them; and
(c) they are necessary, not just for the preparation for trial, but to enable the Defendant to plead in response to the impugned pleadings (Tommy Hilfiger Licensing, Inc. v. 2970-0085 Quebec Inc., [2000] F.C.J. No. 88, at para. 43, quoting from Cooper Canada Ltd. v. Amer Sport International Inc. (1996), 9 C.P.R. (3d) 549).
[10] The Defendant puts forward the affidavit of an Industrial Designer consultant who concludes his four-paragraph affidavit by stating that, without this information, the Defendant is "unable to properly instruct its counsel how to reply in defense of the allegation". However, I note that, in paragraph 2 of his affidavit, the affiant states that the Defendant's devices have pivoting wheels and that, "in response to a lateral force exerted by an external force, the Schulte-Flex Arm Devices will change direction, and cannot define an intended direction of working movement." This is, in effect, a statement that the Defendant's device does not feature a frame having wheels where the frame and wheels define an intended direction of working movement (para. 10(a) of the statement of claim). This looks very much like a defence to the allegation.
[11] In short, the arguments of the Defendant are not supported by this statement in the affidavit. The Defendant does not need the Plaintiffs to point out the point of alleged infringement on a diagram of the Schulte Flex Arm Devices. I believe that the Defendant is quite capable of mounting a defence to this allegation, along with the others in the statement of claim, without further particulars.
Conclusion
[12] In conclusion, the statement of claim provides sufficient details for the Defendant to know the case against it. The statement of claim, as a whole, sufficiently sets out the Plaintiffs' argument. It is unnecessary to order further particulars to allow the Defendant to reply intelligently to the claim. The Defendant's motion will be denied, with costs in any event of the cause.
ORDER
THIS COURT ORDERS THAT:
1. The motion is denied with costs to the Plaintiffs in any event of the cause;
2. The Defendant will have until November 15, 2004 to file its statement of defence.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-854-04
STYLE OF CAUSE: GARY ALEXANDER TYHY and HANDY-HITCH
MANUFACTURING INC. v. SCHULTE INDUSTRIES
LTD.
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 12, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: October 14, 2004
APPEARANCES:
Mr. Simon D. Johnson FOR PLAINTIFFS
Mr. Robert A. Kallio FOR DEFENDANT
SOLICITORS OF RECORD:
Bennett Jones LLP FOR PLAINTIFFS
Edmonton, Alberta
Furman & Kallio FOR DEFENDANT
Regina, Saskatchewan