T-1860-83
Cat Productions Ltd. (Plaintiff)
v.
Dave Macedo and Ross Morell (sometimes trad
ing as ZZ Tops), Nu-West Sportswear & Textiles
Inc., Gurdish Singh Mangat and Mahendra Kaur
Singh (Defendants)
Trial Division, McNair J.—Toronto, February 25;
Ottawa, May 21, 1985.
Constitutional law — Charter of Rights — Application to
strike out paragraphs of statement of defence and counter
claim pursuant to R. 419(1) — Copyright infringement action
— Impugned pleading alleging plaintiffs induced and pro
cured police to seize and detain defendants' goods, depriving
them of benefit thereof contrary to ss. 7 and 8 of Charter —
Counterclaim claiming damages pursuant to s. 24 of Charter
— View expressed by Tarnopolsky and Beaudoin and relied
upon by plaintiff that purpose of Charter to regulate relation
ship of individual with government, while relationship between
individuals better left to regulation by human rights codes,
other statutes and common law remedies, in keeping with
approach taken by courts — Defendants invoking Charter to
introduce matter irrelevant to copyright dispute — Allegations
relating only to claim for damages for abuse of process —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 7, 8, 24.
Practice — Motion to strike pleadings — Application to
strike paragraphs in statement of defence and counterclaim
pursuant to R. 419(1) — Paragraphs regarding arrest of
defendants, seizure of goods, and alleging plaintiff induced
and procured police to seize and detain goods, depriving
defendants of benefit thereof contrary to ss. 7 and 8 of Charter
struck out — Allegations invoking Charter not providing
arguable defence or reasonable cause of action as no triable
issue raised — Defendants invoking Charter to bring in
extraneous matter having nothing to do with real merits of
controversy between parties — Copyright claim not turning on
breach of Charter — Paragraph alleging statement of claim
vexatious and abuse of process not struck out because capable
of standing alone and susceptible of constituting scintilla of
arguable defence or cause of action — Paragraph raising plea
of estoppel struck out because specific facts giving rise to
estoppel not pleaded — Federal Court Rules, C.R.C., c. 663,
RR. 415(3), 419(1).
This is an application to strike out certain paragraphs of a
defence and counterclaim pursuant to Rule 419. Alternatively,
the plaintiff seeks an order under Rule 415(3) for further and
better particulars of some of the allegations contained in sev-
eral of the impugned paragraphs. The amended statement of
defence and counterclaim contained allegations evidentiary in
nature regarding the arrest of the defendants, the laying of
criminal charges against them, and the seizure and detention of
their goods. These paragraphs were included to lay the founda
tion for the allegation that the plaintiff induced and procured
the police to seize and detain the defendants' goods, thereby
depriving them of the benefit thereof contrary to sections 7 and
8 of the Charter. The defendants also alleged that the plaintiff
by reason of its unconscionable acts was estopped from bring
ing the action or obtaining the relief claimed. The counterclaim
sought damages pursuant to section 24 of the Charter.
The plaintiff relied on statements by Tarnopolsky and Beau-
doin in The Canadian Charter of Rights and Freedoms: Com
mentary that the purpose of the Charter is not to regulate
relationships between individuals which are better left to statu
tory control, human rights codes and common law remedies,
but to regulate relationships between individuals and the state.
The defendant relies on a statement by Manning in his book
Rights, Freedoms and the Courts: A Practical Analysis of the
Constitution Act, 1982, that section 8 of the Charter is not
limited to giving security against unreasonable search and
seizure only where the persons infringing on security are agents
of the government. The issue is whether the allegations invok
ing the Charter provide a reasonably arguable defence or a
reasonable cause of action by way of counterclaim.
Held, the application should be allowed in part.
The view expressed by Tarnopolsky and Beaudoin is more in
keeping with the approach taken by the courts than that put
forward by Manning. The allegations complained of do not
raise a triable issue. There is no challenge to the validity of
legislation, nor is the party who allegedly infringed the defend
ants' rights, namely the police, a party to the action. The
plaintiff did not seize the defendants' goods, nor is it in
possession of them. The defendants are invoking the Charter as
an aid to bringing in extraneous matter which has nothing to do
with the real merits of the controversy between the parties. The
plaintiffs claim of copyright does not turn on any breach of the
Charter. There is no suggestion of any criminal conspiracy or
agreement with the Metropolitan Toronto Police on which the
title to the plaintiff's copyright depends but rather the common
purpose alleged is directed only to harassment and abuse of
process giving rise to a claim for damages under the aegis of
the Charter.
The paragraph alleging that the statement of claim is vexa
tious and an abuse of process because the action was brought
solely for the purpose of harassing the defendants is capable of
standing alone, and of constituting the scintilla of an arguable
defence or cause of action.
The unconscionable acts referred to must mean the activities
of the police, and do not disclose any sort of estoppel. The
paragraph raising estoppel must be struck out.
CASES JUDICIALLY CONSIDERED
APPLIED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; 55
N.R. 241; Electrolytic Zinc Process Ltd. v. French's
Complex Ore Reducing Co., [1926] Ex.C.R. 5; Crabb v.
Arun District Council, [1976] Ch. 179 (C.A.).
REFERRED TO:
Amoco Canada Petroleum Co. Ltd. v. Texaco Explora
tion Canada Ltd., [1976] 1 F.C. 258 (T.D.); Burnaby
Machine & Mill Equipment Ltd. v. Berglund Industrial
Supply Co. Ltd. et al. (1982), 64 C.P.R. (2d) 206
(F.C.T.D.); Creaghan Estate v. The Queen, [1972] F.C.
732 (T.D.); Rothschild, Baron Edouard de et al. v.
Custodian of Enemy Property, [1945] Ex.C.R. 44;
Massie & Renwick Ltd. v. Underwriters' Survey Bureau
Ltd. et al., [1940] S.C.R. 218; Davis v. City of Toronto,
[1942] O.W.N. 120 (H.C.).
COUNSEL:
G. Piasetzki and A. Lambert for plaintiff.
P. Kappel for defendants Dave Macedo and
Ross Morell (sometimes trading as ZZ Tops).
No one appearing on behalf of defendants
Nu-West Sportswear & Textiles Inc., Gur-
dish Singh Mangat and Mahendra Kaur
Singh.
SOLICITORS:
Rogers, Bereskin & Parr, Toronto, for
plaintiff.
MacBeth & Johnson, Toronto, for defendants
Dave Macedo and Ross Morell (sometimes
trading as ZZ Tops).
The following are the reasons for order ren
dered in English by
MCNAIR J.: This is an application by the plain
tiff to strike out certain paragraphs of the defence
and counterclaim, pursuant to Rule 419(1) [Fed-
eral Court Rules, C.R.C., c. 663], on the grounds
that the said paragraphs:
(a) disclose no reasonable cause of action or defence;
(b) are immaterial;
(c) are scandalous, frivolous and vexatious;
(d) may prejudice, embarrass or delay the fair trial of the
action; and,
(e) are an abuse of the process of the Court.
Alternatively, the plaintiff seeks an order under
Rule 415(3) for further and better particulars of
some of the allegations contained in several of the
impugned paragraphs in the event the application
to strike should fail.
The action is one for copyright infringement.
The plaintiff alleges that the defendants infringed
the plaintiff's copyright by manufacturing and
selling T-shirts bearing the "Man & Star" design,
which is the artistic work for which the copyright
is claimed.
The plaintiff filed an amended statement of
claim on October 19, 1984. Seemingly, the pur
pose of the amended pleading was to comply with
my order of September 19, 1984 for further and
better particulars of the original statement of
claim.
The affidavit of Anthony Lambert filed in sup
port of the present motion deposed to the state of
the cause in paragraphs 2, 3, and 4 thereof as
follows:
2. A Statement of Defence and Counterclaim on behalf of the
Defendants, Macedo and Morell, was filed with Federal Court
Office on November 19, 1984.
3. The Plaintiff served the solicitors for the Defendants,
Macedo and Morell, with a Demand for Particulars of the
Statement of Defence and Counterclaim on January 8, 1985. A
copy of the Demand for Particulars is attached hereto and
marked as Exhibit "A" to this my Affidavit.
4. The defendants, Macedo and Morell, responded to the
Plaintiffs Demand for Particulars by filing an Amended State
ment of Defence and Counterclaim on February 6, 1985.
It is the amended defence and counterclaim that
is under attack in the present motion.
It might be useful at the outset to state some
fundamental principles. An application to strike
out pleadings must be approached with some
degree of caution. The discretion to strike should
only be exercised in plain and obvious cases. On a
motion to strike a defence under Rule 419(1)(a),
no evidence is admissible and the issue must be
decided on the basis of whether or not, on the
assumption that all the pleaded allegations are
true, it could be said that they provide a "reason-
able defence" or, as it is sometimes put, that they
disclose an arguable defence. In the case of a
motion to strike a statement of claim under the
same Rule, and a counterclaim would fall within
this category, the question is whether the allega
tions pleaded therein, assuming them to be true,
disclose a reasonable cause of action. See Amoco
Canada Petroleum Co. Ltd. v. Texaco Explora
tion Canada Ltd., [1976] 1 F.C. 258 (T.D.); Bur-
naby Machine & Mill Equipment Ltd. v. Berglund
Industrial Supply Co. Ltd. et al. (1982), 64
C.P.R. (2d) 206 (F.C.T.D.). It is also clear on the
authorities that an application to strike under
paragraphs (b) to (f) of Rule 419 should only be
permitted to succeed where the matter complained
of is clearly and obviously so irrelevant, imperti
nent or vexatious as to violate any reasonable
concept of fair pleading or is manifestly an abuse
of the process of the Court. The underlying
rationale is that a party ought not to be lightly
deprived of the opportunity of having "his day in
Court". See Creaghan Estate v. The Queen,
[1972] F.C. 732 (T.D.); and Rothschild, Baron
Edouard de et al. v. Custodian of Enemy Prop
erty, [1945] Ex.C.R. 44.
Paragraphs 19 to 25 of the defence and counter
claim contain allegations, many of them evidenti-
ary in nature, regarding the arrest of the defend
ants by the Toronto Metropolitan Police, the
laying of criminal charges against them, and the
seizure and detention of their goods. Obviously,
these paragraphs are designed to lay the founda
tion for the defendants' allegation in paragraph 26
that the plaintiff induced and procured the Met
ropolitan Toronto Police to seize and detain the
defendants' goods and thereby deprive them of the
benefit thereof, contrary to sections 7 and 8 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] and the
common law.
Paragraph 28 alleges that the plaintiff, by
reason of its unconscionable acts is estopped from
bringing the action or obtaining the relief claimed.
The counterclaim repeats the allegations of the
defence and, inter alia, claims damages pursuant
to section 24 of the Charter.
The defendants rely on sections 7, 8 and 24 of
The Canadian Charter of Rights and Freedoms,
which read as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable
search or seizure.
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in
the proceedings would bring the administration of justice into
disrepute.
Counsel for the plaintiff argues that the Charter
does not regulate private relationships between
individuals, which are better left to statutory con
trol, human rights codes and common law reme
dies, but only regulates relationships between
individuals and the state. He relies on several
excerpts from Tarnopolsky and Beaudoin, The
Canadian Charter of Rights and Freedoms: Com
mentary, at pages 44-45:
The automatic response to a suggestion that the Charter can
apply to private activity, without connection to government,
will be that a Charter of Rights is designed to bind govern
ments, not private actors. That is the nature of a constitutional
document: to establish the scope of governmental authority and
to set out the terms of the relationship between the citizen and
the state and those between the organs of government. The
purpose of a Charter of Rights is to regulate the relationship of
an individual with the government by invalidating laws and
governmental activity which infringe the rights guaranteed by
the document, while relationships between individuals are left
to the regulation of human rights codes, other statutes, and
common law remedies, such as libel and slander laws. Further
more, s. 32(1) specifically states that the Charter applies to
"the Parliament and government of Canada in respect of all
matters within the authority of Parliament" (emphasis added).
It is governmental action which is caught, not private action.
And at page 48:
In conclusion, while the language of the Charter could be
interpreted to extend to private relationships, it should not be so
interpreted. To apply the Charter to private activity will lead to
a great deal of litigation in a judicial forum unsuited to the
problem. It was not intended by the drafters nor accepting
governments that it would so extend, for the Charter, as part of
the Constitution, is meant to restrict governmental action. If
the Charter is to be applied to private activity (the arguments
above having been rejected), the courts should develop different
doctrines for its application to private activity from those
applying to governmental activity.
Counsel for the defendants places much reliance
on Manning, Rights, Freedoms and the Courts: A
Practical Analysis of the Constitution Act, 1982,
and the following excerpts therefrom, at page 312:
A question that will be raised under the Charter and which
has been litigated extensively in the American courts is whether
the acts of agents of the government or private individuals
acting as independent agents away from governmental control
can be controlled by search and seizure provisions; are they
within the purview of section 8 of the Charter? The section
broadly guarantees the right to be secure against unreasonable
search or seizure and neither on its face nor in its historical
background is it limited to giving security against unreasonable
search or seizure only in situations where the persons infringing
on that security are agents of the government.
And at page 464:
As far as the argument under section 32 is concerned, as
indicated elsewhere in these materials, the Charter may well
apply to the acts of private individuals. The omission of the
word "exclusively" after the opening words of section 32 indi
cates that the drafters did not intend that the Charter apply
only to matters within government authority.
In my opinion, the view expressed by Tar-
nopolsky and Beaudoin is more in keeping with the
approach taken by the courts than the position
asserted by Manning.
Chief Justice Dickson, in delivering the judg
ment of the Supreme Court of Canada in Hunter
et al. v. Southam Inc., [1984] 2 S.C.R. 145; 55
N.R. 241, said at page 156 S.C.R.; 248 N.R.:
I begin with the obvious. The Canadian Charter of Rights
and Freedoms is a purposive document. Its purpose is to
guarantee and to protect, within the limits of reason, the
enjoyment of the rights and freedoms it enshrines. It is intended
to constrain governmental action inconsistent with those rights
and freedoms; it is not in itself an authorization for govern
mental action ....
And again, at page 169 S.C.R.; pages 254-255
N.R.:
While the courts are guardians of the Constitution and of
individuals' rights under it, it is the legislature's responsibility
to enact legislation that embodies appropriate safeguards to
comply with the Constitution's requirements. It should not fall
to the courts to fill in the details that will render legislative
lacunae constitutional. Without appropriate safeguards legisla
tion authorizing search and seizure is inconsistent with s. 8 of
the Charter. As I have said, any law inconsistent with the
provisions of the Constitution is, to the extent of the inconsist
ency, of no force or effect.
The predominant issue is whether the allega
tions invoking the Charter provide a reasonably
arguable defence or a reasonable cause of action
by way of counterclaim.
Essentially, the question is whether the allega
tions complained of raise a triable issue. In my
view, they do not, given their widest breadth and
most flexible connotation. It must be observed that
this is not the case of a party in a private action
having the standing to launch a collateral attack
on the validity of a particular piece of legislation
as a means of asserting his claim to some right
peculiar to him. No argument is being put forward
to challenge the validity of any legislation nor is
the party who allegedly infringed the defendants'
rights, namely, the Metropolitan Toronto Police, a
party to the action. The plaintiff did not seize the
defendants' goods nor is it in possession of them.
In my judgment, the defendants are invoking the
Charter as an aid to bringing in extraneous matter
which has nothing whatever to do with the real
merits of the controversy between the parties.
Assuming the allegations are true that the plaintiff
induced or procured the police to illegally seize
and detain the goods of the defendants, the plain
tiff's claim of copyright does not in any way turn
on this or any breach of the Charter. There is no
suggestion of any criminal conspiracy or agree
ment with the Toronto Metropolitan Police on
which the title to the plaintiff's copyright depends
but rather the common purpose alleged is directed
only to harassment and abuse of process giving rise
to a claim for damages under the aegis of the
Charter. See Massie & Renwick Ltd. v. Under
writers' Survey Bureau Ltd. et al., [1940] S.C.R.
218, at page 244.
The tort of abuse of process is not a reflection of
one's intentions but instead depends on the exist-
ence of an improper or illegitimate purpose and a
definite act or threat in furtherance thereof. A
pleading of intention is usually regarded as
immaterial and a litigant's 'private motives are not
generally enquired into. See Electrolytic Zinc
Process Ltd. v. French's Complex Ore Reducing
Co., [1926] Ex.C.R. 5; Davis v. City of Toronto,
[1942] O.W.N. 120 (H.C.).
In Electrolytic Zinc, supra, Maclean J. said at
page 7:
Now it is clear that the court should not concern itself with
relations existing between the plaintiff and persons or entities
not before the court, nor should the plaintiff here be prejudiced
or embarrassed by allegations of fact which are res inter alios
acta.
The defendants allege in paragraph 27 of the
defence that no further T-shirts were produced by
them following their arrest and the seizure of their
goods. They further allege that the statement of
claim is vexatious and an abuse of process because
the action was brought solely for the purpose of
harassing the defendants and causing them to
incur substantial expenditures. The paragraph is
capable of standing separate and apart from the
preceding paragraphs raising allegations involving
the Metropolitan Toronto Police and does relate
by implication to paragraph 33 of the counter
claim alleging damages to the defendants and
profit to the plaintiff and, in my view, is suscept
ible of constituting the scintilla of an arguable
defence or cause of action. For that reason, I
decline to strike paragraph 27.
This brings me to paragraph 28 of the defence,
which raises the plea of estoppel, and reads:
28. By reason of the unconscionable acts of the Plaintiff as
aforesaid, the Plaintiff is estopped from bringing this action or
obtaining the relief claimed or any at all.
The "unconscionable acts" referred to must be
taken to refer, on any reasonable construction, to
the activities of the Metropolitan Toronto Police
referred to in paragraphs 19 to 26 inclusive. Con
ceivably, they could by implication and broad
intendment allude as well to the allegation of
harassment pleaded in paragraph 27 of the
defence, which I have permitted to stand. Regard-
less of that I fail to see any basis on which to
found an estoppel.
Under the modern practice, the facts relied on
to establish an estoppel of any kind, and there are
various categories, must be specially pleaded.
Without attempting to be exhaustive, estoppel is
an equitable principle which may in certain cir
cumstances preclude a party from insisting on his
strict legal rights. Lord Denning M.R. gave a
broad and sweeping definition to promissory estop-
pel in Crabb v. Arun District Council, [1976] Ch.
179 (C.A.), where he said at page 188:
What then are the dealings which will preclude him from
insisting on his strict legal rights? If he makes a binding
contract that he will not insist on the strict legal position, a
court of equity will hold him to his contract. Short of a binding
contract, if he makes a promise that he will not insist upon his
strict legal rights—then, even though that promise may be
unenforceable in point of law for want of consideration or want
of writing—then, if he makes the promise knowing or intending
that the other will act upon it, and he does act upon it, then
again a court of equity will not allow him to go back on that
promise: see Central London Property Trust Ltd. v. High Trees
House Ltd. [1947] K.B. 130 and Charles Rickards Ltd. v.
Oppenhaim [1950] 1 K.B. 616, 623. Short of an actual pro
mise, if he, by his words or conduct, so behaves as to lead
another to believe that he will not insist on his strict legal
rights—knowing or intending that the other will act on that
belief—and he does so act, that again will raise an equity in
favour of the other; and it is for a court of equity to say in what
way the equity may be satisfied. The cases show that this equity
does not depend on agreement but on words or conduct.
The facts pleaded do not disclose any sort of
estoppel with the result that paragraph 28 of the
defence must be struck. If there are any proper
grounds for raising an estoppel, apart from or in
addition to the allegations involving the Metropoli
tan Toronto Police as pleaded in paragraphs 19 to
26 of the defence, which have been dealt with and
disposed of, then the defendants are at liberty to
seek an amendment to substitute an entirely new
paragraph raising a plea of estoppel on properly
and sufficiently pleaded grounds, either upon
motion or by consent.
In the result and for the foregoing reasons,
paragraphs 19 to 26 inclusive, paragraph 28 and
paragraph 34(2) of the defence and counterclaim
must be struck. I am not in agreement with coun
sel for the plaintiff that paragraphs 33, 34(3) and
34(4) must also fall because they depend on alle
gations in other paragraphs which, prima facie,
should be stricken. In my opinion, these para
graphs are reasonably susceptible as standing on
their own feet and, for that reason, should not be
struck.
Accordingly, an order will go on the terms
stated herein, with costs to the plaintiff in the
cause.
ORDER
1. That paragraphs 19 to 26 inclusive, paragraph
28 and paragraph 34(2) of the defence and coun
terclaim be struck.
2. That paragraphs 33, 34(3) and 34(4) thereof be
permitted to stand.
3. That the costs of and incidental to the applica
tion shall be to the plaintiff in the cause.
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.