T-4449-80
AM International, Inc. (Plaintiff)
v.
National Business Systems, Inc., Leigh Instru
ments Limited and J. Stahle Industries, Inc.
(Defendants)
Trial Division, Walsh J.—Ottawa, June 18, 1981.
Practice — Motion to strike pleadings — Plaintiff, in
amended reply and defence to counterclaim, merely denied the
allegations in certain paragraphs of the statement of defence
— Court order stated that a mere denial of facts which appear
from documents of record is clearly insufficient — Subse
quently plaintiff denied allegations "as stated", but also
pleaded that the allegations were irrelevant to the proceedings
and that the documents referred to spoke for themselves —
Whether amended pleadings are sufficiently precise to comply
with Court order — Motion dismissed — Federal Court Rule
321(2).
MOTION.
COUNSEL:
No one appearing for plaintiff.
J. N. Landry for defendants.
SOLICITORS:
No one appearing for plaintiff.
Ogilvy, Renault, Montreal, for defendants.
The following are the reasons for order ren
dered in English by
WALSH J.: Defendants move to strike out para
graphs 5(a), 5(b), 21(a),(b),(c),(d),(e) and (f) of
the amended reply and defence to counterclaim on
the ground that the said amended paragraphs
made pursuant to the order of June 5, 1981 do not
provide particulars in the form of a substantial
answer of the denials in the said above-mentioned
paragraphs. Leave is also sought to file and serve
the motion without the two clear days notice
required by Rule 321(2).
Counsel for defendants was heard on the
motion. Plaintiff's counsel had filed written sub
missions objecting to the hearing on short notice
and suggesting that the proper time and place
should be in Toronto on a regular motion day
rather than at a special hearing in Ottawa on short
notice pursuant to the direction of the Associate
Chief Justice. Alternatively plaintiff's counsel sub
mits in writing that the further reply and defence
to the counterclaim does comply with the order
and that the said paragraphs do provide a substan
tial answer and defence to the allegations con
tained in the statement of defence and counter
claim, are not evasive and state plaintiff's position
of which defendants are clearly aware so that the
present motion is frivolous and vexatious.
Although defendants' counsel had not had the
opportunity until today to consider these submis
sions it is evident that there is nothing in them to
take him by surprise or cause him prejudice and it
is for the Court to decide whether these amended
paragraphs are sufficient to comply with the order
of June 5. Permission was therefore given to pro
ceed in the absence of counsel for plaintiff, and
waiving the 2-day delay.
Previously plaintiff had merely denied the alle
gations in certain paragraphs of the statement of
defence and defendants had contended that this
was insufficient as the said paragraphs referred to
statements made by plaintiff in various patent
applications which were a matter of record.
After reviewing the Rules the Court order of
June 5, 1981 stated:
These representations were either made or not made in connec
tion with the patent applications referred to, and if they were in
fact made Plaintiff should admit this unless it is the intention to
deny that the persons who made the representations were not
authorized to do so on behalf of Plaintiff, in which event this
should be stated. A mere denial of facts which apparently
appear from documents of record is clearly insufficient.
The paragraphs in the further amended reply
and defence to counterclaim, which defendants
now contend do not comply with the order, replace
the former mere denial with the words "denies the
allegations as stated" but also plead that the alle
gations are irrelevant to the proceedings herein,
and that in any event the documents referred to
speak for themselves. Certainly both the latter two
allegations constitute proper pleading. While there
might be some doubt as to whether the addition of
the words "as stated" to the denials constitutes by
itself a compliance with the order, plaintiff is
entitled, if it chooses, to contend that the para
graphs in defendants' said pleading do not properly
represent the contents of the written documents
relied on, which must speak for themselves. The
addition of the words "as stated", accompanied by
the indication of pleading the irrelevancy of the
documents relied on and the self-evident statement
that the documents speak for themselves makes
the amended pleadings sufficiently precise to
comply with the order and place the issues before
the Court, and defendants can have no real doubt
of plaintiff's position on the issues raised in these
paragraphs.
The motion is therefore denied.
ORDER
Defendants' motion for striking out paragraphs
5(a), 5(b), 21(a),(b),(c),(d),(e), and (f) of the
amended reply and defence to counterclaim is
dismissed 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.