A-1763-83
Gulf Canada Limited (Appellant) (Plaintiff)
v.
The Tug Mary Mackin and Sea-West Holdings
Ltd. (Respondents) (Defendants)
Court of Appeal, Heald, Mahoney and Marceau
JJ.—Vancouver, February 16; Ottawa, March 7,
1984.
Practice — Particulars — Appeal from order requiring
appellant to furnish further and better particulars of allega
tions of negligence — Barge chartered by appellant sustaining
damages when grounded while in respondent company's sole
care and custody — Appellant alleging breach of contract and
negligence — Examination for discovery of president of
respondent company adjourned — Respondents seeking fur
ther particulars pursuant to RR. 408(1) and 415 to end
difficulties at examination for discovery because plaintiffs
questions about crew and equipment having no known or
pleaded connection with accident and to clarify issues for
purposes of trial and preparation therefor — Appeal dis
missed — Purpose of particulars stated in Anglo-Canadian
Timber Products Ltd. v. British Columbia Electric Company
Limited to clarify issues raised in pleadings so opposite party
can prepare for trial by discovery and otherwise — White
Book on The Supreme Court Practice (English) setting out
functions of particulars: (1) to inform other side of case to
meet; (2) to prevent surprise at trial; (3) to enable other side to
know evidence to be prepared with and to prepare for trial; (4)
to limit generality of pleadings; (5) to limit and decide issues
to be tried and as to which discovery required; and (6) to tie
hands of party so cannot without leave go into matters not
included — Generality of statement of claim permitting ques
tions on examination for discovery bearing no relevance to real
issues raised — Federal Court Rules, C.R.C., c. 663, RR.
408(1), 415(3).
Appeal from order of Motions Judge requiring appellant to
furnish further and better particulars of allegations of negli
gence in the statement of claim. While a barge hired by the
appellant was in the sole care and custody of the respondent
company, it went aground and was damaged. The appellant
alleges that the accident resulted from the respondent's breach
of contract and negligence. The president of the respondent
company was produced for examination for discovery, but the
examination was adjourned. The respondents applied pursuant
to Rules 408(1) and 415(3) for an order for further and better
particulars in order to resolve difficulties which arose at the
examination for discovery when the plaintiff insisted on asking
questions "pertaining to tug crew and equipment having no
known nor pleaded connection with the accident" and also with
a view to clarifying, the issues for the purposes of trial and
preparation therefor.
Held (Marceau J. dissenting), the appeal should be
dismissed.
Per Heald J.: The principles governing an application of this
kind were well stated in Anglo-Canadian Timber Products
Ltd. v. British Columbia Electric Company Limited (1960), 31
W.W.R. 604 (B.C.C.A.). The purpose of an examination for
discovery is to prove or disprove the issues defined in the
pleadings. The purpose of particulars is to require a party to
clarify the issues he has tried to raise by his pleading, so that
the opposite party may be able to prepare for trial by examina
tion for discovery and otherwise. In Cansulex Limited v. Perry
et al., judgment dated March 18, 1982, British Columbia Court
of Appeal, file C785837, not reported, it was said that the
distinction between particulars and an examination for discov
ery depends upon whether the material demanded delineates
the issues or whether it requests material relating to the way in
which the issues will be proved. The functions of particulars, as
set out in the English publication The Supreme Court Practice
are: (1) to inform the other side of the nature of the case to be
met; (2) to prevent surprise at trial; (3) to enable the other side
to know the evidence it ought to be prepared with and to
prepare for trial; (4) to limit the generality of the pleadings; (5)
to limit and decide issues to be tried, and as to which discovery
required; and (6) to tie the hands of the party so that he cannot
without leave go into any matters not included. Rules 408(1)
and 415(3) are similar to the corresponding English Rules so
that the above functions of particulars apply to the application
herein. Many of the questions on the examination for discovery
do not have much relevance to the real issues raised. Because of
the generality of the statement of claim they might be permissi
ble, but they clearly illustrate the necessity of particulars being
ordered.
Per Marceau J. (dissenting): The Judge erred in ordering the
appellant to supply further particulars. The purpose for the
order sought was to narrow the scope of discovery. Such a
purpose, behind which there is more a desire to hamper the
other party's case than to advance the applicant's, is not valid.
The respondents did not need the particulars to prepare their
defence nor did they consider it necessary to request them
before submitting to discovery. They cannot object now until
the matter is ready for trial and the time to prepare for the
hearing has arrived. The application is premature. Other con
siderations militate against a granting of the demand. The
accident occurred while the barge was in the respondent's sole
care and custody. The appellant can thus have no direct
knowledge of the facts causing its barge to ground. To order
the appellant to furnish particulars means it will either have to
abandon its claim of negligence or to set forth under the guise
of particulars, surmises and inferred possibilities. In the first
instance an injustice will be done and in the second, the
pleadings will be distorted.
CASES JUDICIALLY CONSIDERED
APPLIED:
Anglo- Canadian Timber Products Ltd. v. British
Columbia Electric Company Limited (1960), 31 W.W.R.
604 (B.C.C.A.); Cansulex Limited v. Perry et al., judg
ment dated March 18, 1982, British Columbia Court of
Appeal, file C785837, not reported.
REFERRED TO:
International Business Machines Corporation v. Xerox of
Canada Limited et al. (1977), 16 N.R. 355 (F.C.A.);
Cominco Ltd. v. Westinghouse Can. Ltd. et al. (1978), 6
B.C.L.R. 25 (S.C.); Brown v. Batco Development Co.
Ltd. (1946), [62] B.C.R. 371 (S.C.); Dillingham Corpo
ration Ltd. v. Finning Tractor & Equipment et al.,
judgment dated July 14, 1983, British Columbia
Supreme Court, Vancouver Registry C810891, not yet
reported; Somers v. Kingsbury (1923), 54 O.L.R. 166
(C.A.); Dixon v. Trusts & Guarantee Co. (1914), 5
O.W.N. 645 (H.C.).
COUNSEL:
David Roberts, Q.C. for appellant (plaintiff).
G. H. Cleveland for respondents (defendants).
SOLICITORS:
Campney & Murphy, Vancouver, for appel
lant (plaintiff).
Owen, Bird, Vancouver, for respondents
(defendants).
The following are the reasons for judgment
rendered in English by
HEALD J.: I have had the advantage of reading
the reasons for judgment herein of my brother,
Marceau J. but must respectfully disagree with the
result which he proposes. It is my conclusion that
the appeal from the decision of the learned
Motions Judge should be dismissed. I accept as
being accurate my brother Marceau's summary of
the essential facts and do not propose to repeat
them except where necessary for the context of
these reasons.
Paragraph 8 of the statement of claim alleged
negligence by the operator, servants or agents of
the defendant tug. The particulars of such negli
gence set forth in paragraph 8 were:
8....
(a) failing to properly man and/or equip and/or maintain
the Defendant tug for the subject towage;
(b) failing to operate and/or navigate the Defendant tug
properly during the subject towage.
The learned Motions Judge ordered further and
better particulars of the said allegations contained
in paragraph 8. That order reads:
A. ...
1. further and better particulars of paragraph 8(a) of the
Statement of Claim, stating in what particular respects the
Defendants, their servants or agents are alleged to have failed
to
(i) man the Defendant tug properly;
(ii) equip the. Defendant tug properly;
(iii) maintain the Defendant tug properly.
2. further and better particulars of the allegations in paragraph
8(b) of the Statement of Claim, stating in what particular
respects the Defendants, their servants or agents are alleged to
have failed to
(i) operate the Defendant tug properly;
(ii) navigate the Defendant tug properly.
It appears from the record that the statement of
defence denies, inter alia, the allegations contained
in paragraph 8 of the statement of claim supra.
Thereafter, on May 31, 1983, counsel for the
plaintiff commenced an examination for discovery
of the president of the defendant corporation.
Apparently difficulties arose at the examination
over "... the insistence of counsel for the Plaintiff
on putting questions and demanding production of
documents pertaining to tug crew and equipment
having no known nor pleaded connection with the
accident". (See, affidavit of William O. Forbes,
case page 15.) Because of these difficulties, the
examination was adjourned and subject motion for
further and better particulars was made to the
Trial Division.
The principles governing an application of this
kind were well stated by Sheppard J.A. in the case
of Anglo- Canadian Timber Products Ltd. v. Brit-
ish Columbia Electric Company ,Limited,' where
he stated at pages 605 and 606:
Hence it appears that an examination for discovery follows
upon the issues having been previously defined by the pleadings
and the purpose of such discovery is to prove or disprove the
issues so defined, by a cross-examination on the facts relevant
to such issues.
' (1960), 31 W.W.R. 604 (B.C.C.A.).
On the other hand the purpose of particulars is to require a
party to clarify the issues he has tried to raise by his pleading,
so that the opposite party may be able to prepare for trial, by
examination for discovery and otherwise. The purpose of par
ticulars was stated in Thorp v. Holdsworth (1876) 3 Ch D 637,
45 LJ Ch 406, by Jessel, M.R. at p. 639, as follows:
"The whole object of pleadings is to bring the parties to an
issue, and the meaning of the rules of Order XIX, was to
prevent the issue being enlarged, which would prevent either
party from knowing when the cause came on for trial, what
the real point to be discussed and decided was. In fact, the
whole meaning of the system is to narrow the parties to
definite issues, and thereby to diminish expense and delay,
especially as regards the amount of testimony required on
either side at the hearing."
That purpose of particulars was stated in Spedding v. Fitz-
patrick (1888) 38 Ch D 410, 58 LJ Ch 139, by Cotton, L.J. at
p. 413, as follows:
"The object of particulars is to enable the party asking for
them to know what case he has to meet at the trial, and so to
save unnecessary expense, and avoid allowing parties to be
taken by surprise."
Also the particulars operate as a pleading to the extent that
"They tie the hands of the party, and he cannot without leave
go into any matters not included" (Annual Practice, 1960, p.
460) and they may be amended only by leave of the court
(Annual Practice, 1960, p. 461).
When pleadings are so vaguely drawn that the opposing
party cannot tell what are the facts in issue or, in the words of
Cotton, L.J. in Spedding v. Fitzpatrick, supra, "what case he
has to meet," then in such circumstances the particulars serve
to define the issue so that the opposite party may know what
are the facts in issue. In such instances the party demanding
particulars is in effect asking what is the issue which the
draftsman intended to raise and it is quite apparent that for
such a purpose an examination for discovery is no substitute in
that it presupposes the issues have been properly defined.
This case was cited with approval in a later deci
sion of the British Columbia Court of Appeal in
the case of Cansulex Limited v. Perry et al. 2 In
that case, Lambert J.A. referred to the Anglo-
Canadian Timber decision as being one of the
decisions which "... delineate the difference be
tween what is properly the subject matter of a
Demand for Particulars and what is more properly
the subject-matter of a Demand for Discovery of
material that should be obtained on an Examina -
2 Judgment dated March 18, 1982, British Columbia Court
of Appeal, file C785837, not reported.
tion for Discovery". (See, page 8 of the reasons of
Lambert J.A.) Mr. Justice Lambert added:
At the heart of the distinction between the two lies the question
whether the material demanded is intended to, and does, deline
ate the issues between the parties, or whether it requests
material relating to the way in which the issues will be proved.
He then went on at pages 10 and 11 of his reasons
to enumerate with approval the function of par
ticulars as set out in the White Book dealing with
the English Practice. The Supreme Court Prac
tice, 1982, Vol. 1, page 318 details this function as
follows:
(1) to inform the other side of the nature of the case they
have to meet as distinguished from the mode in which
that case is to be proved ...
(2) to prevent the other side from being taken by surprise at
the trial ....
(3) to enable the other side to know what evidence they
ought to be prepared with and to prepare for trial ....
(4) to limit the generality of the pleadings ....
(5) to limit and decide the issues to be tried, and as to which
discovery is required ... .
(6) to tie the hands of the party so that he cannot without
leave go into any matters not included ....
Because Rule 408(1) [Federal Court Rules,
C.R.C., c. 663] requiring "... a precise statement
of the material facts on which the party pleading
relies" and Rule 415 permitting applications for
further and better particulars of allegations in a
pleading are substantially similar to the corre
sponding sections in the English Rules, I think the
above quoted six functions of particulars should
apply equally to an application such as the present
one under our Rules.
According to the Forbes' affidavit supra, the
examination for discovery of the president of the
defendant corporation before it was adjourned
consisted of some 653 questions in 81 pages. Many
of the questions and requests for production of
documents do not appear to have much relevance
to the real issues raised in the action. Because of
the generality of paragraph 8 of the statement of
claim, they might be permissible questions and
documents but they clearly illustrate the advisabil-
ity of particulars being ordered so as to delineate
the issues to be tried.
Having regard to this factual situation and in
light of the criteria adopted in the English practice
and in other courts in Canada, I am unable to
conclude that the learned Motions Judge proceed
ed on some erroneous principle or some misappre
hension of the facts or that the order which he
made is not just and reasonable. In these circum
stances, a Court of Appeal will not interfere with
the exercise of his discretion by a Judge of the first
instance in an interlocutory matter of this kind. 3
For these reasons I would dismiss the appeal
with costs.
MAHONEY J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J. (dissenting): This appeal is from
an order of a Motions Judge requiring the appel
lant, the plaintiff in the action herein, to furnish
within fifteen days further and better particulars
of some of the allegations of the statement of
claim. The context is the following.
The appellant has brought an action against the
respondent company and its tug on the basis of a
statement of claim, filed on May 5, 1982, in which
it alleges in substance: that it was the charterer by
demise of the barge Empire 45, when it caused the
respondent company, owner of the defendant tug,
to agree to transport the barge from Vancouver to
Victoria harbours; that while the barge was in the
sole care and custody of the respondent company,
it was grounded on the north shore of the Second
Narrows passage in Vancouver harbour and its
hull was severely damaged; that the accident
occurred as a result of the respondent's breach of
contract and negligence. Paragraph 8 of that state
ment of claim was the one pertaining more specifi
cally to negligence. It reads thus:
3 Compare: International Business Machines Corporation v.
Xerox of Canada Limited et al. (1977), 16 N.R. 355 (F.C.A.).
8. Further, the Operator, its servants or agents, were negligent
and in breach of the duty owed to Gulf. Particulars of such
negligence that Gulf is able to give prior to discovery are as
follows:
(a) failing to properly man and/or equip and/or maintain
the Defendant tug for the subject towage;
(b) failing to operate and/or navigate the Defendant tug
properly during the subject towage.
The respondent company, opposing the action,
filed a statement of defence on June 28, 1982 in
which it denied the negligence alleged against it
and pleaded that the barge had grounded without
any fault on the part of those on board the tug.
On May 31, 1983, the president of the respond
ent company was produced to be examined for
discovery. The examination was not concluded in
the time scheduled and was adjourned permitting
the president to inform himself as to questions
which he had been unable to answer. A few days
later, counsel for the respondents wrote to the
appellant requesting that further particulars of the
allegations of negligence made in the statement of
claim be given before the discovery could be
resumed. The appellant replied that it was not
presently in a position to satisfy the request and
would not be before discovery was completed. On
November 22, 1983, the respondents brought to
Court a formal application, pursuant to Rules
408(1) and 415(3), requiring the appellant to file
and serve further particulars of negligence. In the
affidavit filed in support of the motion, a solicitor
for the respondents explained that the application
was made in order to put an end to "... difficulties
which arose (during the first part of the examina
tion) over the insistence of counsel for the Plaintiff
on putting questions and demanding production of
documents pertaining to tug crew and equipment
having no known nor pleaded connection with the
accident", adding at the end of his declaration that
the application was made "... also with a view to
clarifying the issues for purposes of trial and
preparation therefor".
Without giving reasons, the learned Motions
Judge, granted the application. He issued an order
as follows:
A. The plaintiff shall, within 15 days of the date of this order,
file and serve:
1. further and better particulars of paragraph 8(a) of the
Statement of Claim, stating in what particular respects the
Defendants, their servants or agents are alleged to have failed
to
(i) man the Defendant tug properly;
(ii) equip the Defendant tug properly;
(iii) maintain the Defendant tug properly.
2. further and better particulars of the allegations in paragraph
8(b) of the Statement of Claim, stating in what particular
respects the Defendants, their servants or agents are alleged to
have failed to
(i) operate the Defendant tug properly;
(ii) navigate the Defendant tug properly.
B. The defendants shall recover from the plaintiff, after taxa
tion and in any event of the cause, their costs of this motion.
The appellant immediately brought this appeal.
The order of the learned Trial Judge, in my
respectful opinion, should not be allowed to stand.
It is of course well understood, as counsel for the
respondent was prompt to remind us, that an
important element of discretion is involved in a
decision of that kind and it is trite to say that an
appellate tribunal ought not to intervene simply to
substitute its own discretion to that of a judge of
first instance. But I think that much more than a
mere matter of discretion is here involved. By
requiring the appellant to particularize the allega
tions of negligence of its statement of claim, at this
time of the proceedings and before completion of
the discovery, the learned Motions Judge, in my
view, proceeded on an erroneous principle or at
least, did not give proper weight to all the relevant
considerations deriving from the particular cir
cumstances of the case.
There are, as it is well known, two possible
purposes for which a demand for particulars can
be made: the primary one is to render a pleading
sufficiently distinct so as to permit the answer
thereto to be properly framed; the other is to
better elucidate the facts upon which a party relies
in order to ensure more clearness, prevent surprise
at trial and facilitate the hearing. The only pur-
pose for which an order with immediate effect was
sought here was, as explained in the affidavit filed
in support of the application, to narrow the scope
of the discovery in progress. To me, such a pur-
pose—behind which there is no doubt more a
desire to hamper the other party's case than to
advance the applicant's one—is not valid. The
respondents did not need the particulars to prepare
their defence nor did they consider it necessary to
request them before submitting to discovery. I do
not think they can now object until the matter is
ready for trial and time to prepare for hearing has
arrived. If the appellant does not particularize its
allegations of negligence, either by further plead-
ings or by amendments, and if it is not held to be
entitled to rely on the doctrine res ipsa loquitur
without making specific charges of fault, then, on
a renewed application, its case in negligence may,
in all likelihood, be precluded to go to trial as it
stands. But an application with that result in mind
is premature at this point of the proceedings. (See
Williston and Rolls, The Law of Civil Procedure,
Vol. 2. (1970) pages 735 et seq., also, pages 744 et
seq.; see the list of cases cited in The Canadian
Abridgment (2d ed.) PRACTICE, at page 213, No.
1273.)
Even leaving aside the question of the validity of
the purpose alleged for requiring particulars at this
time, there were, in my opinion, considerations due
to the circumstances of the case which definitely
militated against a granting of the demand. On the
pleadings already on record and the facts set forth
therein, it is clear that the appellant's barge was
damaged while in the sole care and custody of the
respondents. The statement of claim contains
unequivocal assertions to that effect and the state
ment of defence does not say otherwise. It is true
that the defendants have formulated in their
defence a general denial of the allegations of facts
made in the declaration (paragraph 3), but the
denial is therein made with an important qualifica
tion, it being introduced by the phrase "except as
is herein expressly admitted", and their version of
the accident as reported in the following para
graphs simply confirms that the barge was then in
their sole care and custody (see in particular para-
graph 5). The appellant can have no direct knowl
edge of the facts that caused its barge to ground
since none of the people under its control were on
the scene of the accident when it happened; the
only knowledge it may have, if any, can only be
indirect, partial, the result of some private investi
gation and, of course, more or less reliable. This is
obvious from the record: no special material or
evidence has to be submitted to support it. In such
circumstances, the order to furnish particulars
leaves the appellant with a choice between two
alternatives: it will have to either renounce its
recourse in negligence or endeavour to set forth,
under the guise of particulars, a deluge of surmises
and inferred possibilities. In the first alternative,
an injustice will be done and in the second, the
pleadings will be distorted and turned away from
their proper office. Obviously, the learned Motions
Judge had not been made quite aware of the
situation and did not clearly realize the practical
effect of his order. (Compare Cominco Ltd. v.
Westinghouse Can. Ltd. et al. (1978), 6 B.C.L.R.
25 (S.C.); Brown v. Batco Development Co. Ltd.
(1946), [62] B.C.R. 371 (S.C.); Dillingham Cor
poration Ltd. v. Finning Tractor & Equipment et
al. (judgment dated July 14, 1983, British
Columbia Supreme Court, Toy J., Vancouver
Registry C810891, not yet reported); Somers v.
Kingsbury (1923), 54 O.L.R. 166 (C.A.), at 169;
Dixon v. Trusts & Guarantee Co. (1914), 5
O.W.N. 645 (H.C.).)
I would grant the appeal, set aside the Motions
Judge's order and dismiss the respondents' applica
tion for particulars, without prejudice, however, to
the possibility that the application be renewed
after the close of pleadings. The appellant is en
titled to its costs here and in the Trial Division.
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.