T-3772-80
Hassan Ismail, Ahamed Saeed, Abdul Gadir
Ibrahim Manik, Mohamed Rasheed, Mohamed
Waheed, Ahamed Rasheed, Abdulla Ibrahim,
Abdulla Aboubakuru, Mohamed Manik, Hassan
Ahamed, Hassan Abdulla, Mohamed Ali and Ali
Moosa (Plaintiffs)
v.
The owners and all others interested in the ship
Golden Med and the ship Golden Med (Defend-
ants)
Trial Division, Walsh J.—Ottawa, January 14,
1981.
Practice Motion to strike pleadings — Motion by
defendants to strike out paragraph 9 of plaintiffs' amended
statement of claim Amendment made pursuant to Rule 421
No application by defendants to have amendment disal
lowed pursuant to Rule 422 Whether this Court can at this
stage strike the paragraphs added to the proceedings by the
amendment — Motion maintained Rule 422 does not
remove any discretion from the Court to deal with a motion
pursuant to Rule 419 to strike an allegation improperly plead
ed — Federal Court Rules 419, 420(1), 421, 422.
MOTION pursuant to Rule 324.
COUNSEL:
W. Spicer for plaintiffs.
Jacques Laurin for defendants.
SOLICITORS:
McInnes, Cooper & Robertson, Halifax, for
plaintiffs.
McMaster Meighen, Montreal, for defend
ants.
The following are the reasons for judgment
rendered in English by
WALSH J.: Defendants move to strike paragraph
9 of plaintiffs' second amended statement of claim
which reads as follows:
Subsequent to the commencement of action, and subsequent
to the taking of Commission evidence in Halifax, Mr. Cardoza,
an employee, servant or agent of the Defendants attended at
Male, Republic of Maldives, the residence of the Plaintiffs.
While there he wrongfully and fraudulently attempted to have
the Plaintiffs discontinue the within action.
In addition, Mr. Cardoza has attempted, while at Male, to
have certain documents which should be provided to the Plâin-
tiffs withheld by the Government. These documents are ma
terial to the presentation of the Plaintiffs' case. The Plaintiffs
say that this conduct on the part of Mr. Cardoza constitutes
illegal and fraudulent activity on the part of the Defendants,
their servant or agent, designed entirely to suppress material
evidence.
The Plaintiffs rely, inter alia, on the facts of this paragraph
in support of their claim for punitive damages against the
Defendants.
The motion is submitted pursuant to Rule 324 on
written submissions of both parties which are
extensive and complete including references to
jurisprudence.
Plaintiffs made the amendment pursuant to
Rule 421. Rule 422 reads as follows:
Rule 422. Where any party has amended his pleading under
Rule 421(1), any other party may, within two weeks after the
service on him of the amended pleading, apply to the Court to
disallow the amendment or any part thereof, and the Court
may, if satisfied that the justice of the case requires it, disallow
the same.
and although there is some question as to whether
the amendment was properly served on defendants,
defendants in any event took no action to have it
disallowed within two weeks after becoming aware
of it. Plaintiffs contend therefore that the Court
cannot now strike the paragraphs added to the
proceedings by the amendment. It is to be noted
however that the Rule uses the word "may" and
that the Court "may, if satisfied that the justice of
the case requires it, disallow the same". Rule
420(1) reads as follows:
Rule 420. (I) The Court may, on such terms, if any, as seem
just, at any stage of an action, allow a party to amend his
pleadings, and all such amendments shall be made as may be
necessary for the purpose of determining the real question or
questions in controversy between the parties.
I believe that the two sections must be read in
conjunction and that Rule 422 cannot have the
effect of removing any discretion from the Court
to deal with a motion pursuant to Rule 419 to
strike an allegation which is improperly pleaded.
Surely if an allegation should be struck pursuant
to Rule 419 then a mere procedure failure by the
opposing party to avail itself of an opportunity to
have an amendment to a pleading struck pursuant
to Rule 422 within two weeks would not justify
retaining in the pleading an improperly pleaded
paragraph.
Plaintiffs contend that the paragraph is properly
included, although it deals with incidents which
allegedly occurred only subsequent to the com
mencement of the action, as the foundation for the
claim under paragraph 10(vii) of the second
amended statement of claim which claims "Puni-
tive damages", and which is not a paragraph
which was added by the amendment, but appeared
in the original statement of claim.
The action is a claim for seamen's wages based
on contract, and it would appear that if any puni
tive damages can be awarded arising from a
breach of contract, which is doubtful, such puni
tive damages would clearly have to relate to issues
arising out of the contract. If a defendant during
the course of proceedings attempts to induce the
plaintiffs, behind the back of their attorney to
discontinue their action, or attempts to induce
third parties, not parties to the proceedings to
withhold documents necessary to the presentation
of plaintiffs' case, these actions, if indeed they
have caused any damage to plaintiffs, might con
ceivably give rise to a separate action for tort, but
that is clearly a new cause of action, arising subse
quent to the present proceedings, and not directly
connected with plaintiffs' claim, but merely with
what may be improper means adopted to prevent it
from succeeding. I do not believe that the mere
mention of punitive damages as one element of the
claim in the conclusions of plaintiffs' proceedings
can justify allegations relating to what is really a
new cause of action which plaintiffs are attempt
ing to incorporate in their original claim. More
over this Court would clearly not have jurisdiction
over any such claim for damages arising from tort
which clearly cannot be brought within section 22
of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10.
Defendants' motion to strike paragraph 9 of
plaintiffs' second amended statement of claim is
therefore maintained with costs.
ORDER
Paragraph 9 of plaintiffs' second amended state
ment of claim is struck with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.