T-1627-82
Chief Roy Whitney, Jr., Bradford Littlelight, Tom
Runner, Bruce Starlight, Alex Crowchild, Peter
Manywounds, Jr., Gilbert Crowchild, Sidney Star
light and Gordon Crowchild on behalf of them
selves and the members of the Sarcee Band of
Indians and the said Sarcee Band of Indians
(Plaintiffs)
v.
Her Majesty the Queen in right of Canada
(Defendant)
INDEXED AS: SARCEE BAND OF INDIANS V. CANADA (T.D.)
Trial Division, Dubé J.—Vancouver, February 19
and 21, 1990.
Practice — Pleadings — Particulars — Plaintiffs seeking
order for particulars re paragraph of statement of defence
wherein defendant alleges cause or causes of action statute
barred — Plaintiffs allege paragraph not complying with R.
409 as specifying neither statutory provisions nor material
facts relied on — Motion allowed — Defendant must specify
material facts giving rise to prescription period and statutory
provisions relied on — Parties entitled to particulars before
pleading to plead intelligently and before trial to prepare for
trial.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 324, 408(1),
409, 412(2), 415(1), 465(3).
CASES JUDICIALLY CONSIDERED
APPLIED:
Sandvik, A.B. v. Windsor Machine Co. (1986), 8 C.P.R.
(3d) 433; 7 C.I.P.R. 232; 2 F.T.R. 81 (F.C.T.D.); Cat
Productions Ltd. v. Macedo et al. (1984), 1 C.P.R. (3d)
517 (F.C.T.D.); Gulf Canada Limited v. The Tug Mary
Mackin, [1984] 1 F.C. 884; (1984), 42 C.P.C. 146; 52
N.R. 282 (C.A.); Société des Produits Marnier-Lapos-
tolle v. René Rey Swiss Chocolates Ltd., T-2086-88,
Dubé J., order dated 3/10/89, F.C.T.D., not yet reported.
DISTINGUISHED:
Caterpillar Tractor Co. v. Babcock Allait Limited,
[1983] 1 F.C. 487; (1982), 67 C.P.R. (2d) 135 (T.D.);
Riske v. Canadian Wheat Board, [ 1977] 2 F.C. 143;
(1976), 71 D.L.R. (3d) 686 (T.D.).
COUNSEL:
Irwin G. Nathanson, Q.C. for plaintiffs.
David Ackman for defendant.
SOLICITORS:
Nathanson, Schachter & Thompson, Vancou-
ver, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
DURÉ J.: In this two-pronged motion, the plain
tiffs seek an order that the defendant file particu
lars of paragraph 52 of the Further Amended
Statement of Defence and an order that the
defendant file a supplementary list of documents
relating to the issues raised in paragraphs 53, 54
and 55 of said defence.
Paragraph 52 of the Further Amended State
ment of Defence reads as follows:
52. Any cause or causes of action the Plaintiffs might have
against the Defendant is and are statute barred. The Defendant
pleads section 38 of the Federal Court Act, R.S.C. 1970, 2nd
Supplement, c. 10, and the material statutory limitations appli
cable with respect to the said cause or causes of action.
The plaintiffs allege that paragraph 52 does not
comply with Rule 409 [Federal Court Rules,
C.R.C., c. 663] as it does not specify the statutory
provisions upon which the defendant proposes to
rely. Rule 409 reads as follows:
Rule 409. A party shall plead specifically any matter (e.g.
performance, release, a statute of limitations, prescription,
fraud or any fact showing illegality)
(a) that he alleges makes a claim or defence of the opposite
party not maintainable;
(b) that, if not specifically pleaded, might take the opposite
party by surprise, or
(c) that raises issues of fact not arising out of the preceding
pleading.
The plaintiffs complain that paragraph 52 does not
reveal:
(a) what the limitation period is said to be;
(b) when the limitation is said to have expired;
(c) what issues of fact such as, for example the
question of fraudulent concealment, will be rele
vant at various times.
The plaintiffs rely on a 1986 decision of Collier
J., Sandvik, A.B. v. Windsor Machine Co. (1986),
8 C.P.R. (3d) 433; 7 C.I.P.R. 232; 2 F.T.R. 81
(F.C.T.D.). In that case the defendants attacked
the validity of the patent, denied infringement and
raised the issue of the applicable limitation period.
The Court said as follows at page 242:
These arguments, in my view, fail because the so-called
defences have not been properly pleaded. In para. 20 of Wind-
sor's defence, and para. 19 of that of Stihl, this is said: "In the
alternative defendant ... will rely upon Section 38(1) of the
Federal Court Act."
Section 38(1) is as follows:
38(1) Except as expressly provided by any other Act, the
laws relating to prescription and the limitation of actions in
force in any province between subject and subject apply to
any proceedings in the Court in respect of any cause of
action arising in such province, and a proceeding in the Court
in respect of a cause of action arising otherwise than in a
province shall be taken within and not after six years after
the cause of action arose.
After reproducing Rule 409, Collier J. continued
as follows at page 243:
The defendants' plea in this case is one of law. There is no
precise statement of material facts (Rule 409(l)) which can
then be said to bring into play the limitation or prescription
provisions of particular provinces. The pleas, as framed, are
completely devoid of information as to what is really alleged.
The proper method, to my mind, would be to set out the
material facts giving rise to the invocation of the 2-year pre
scription periods relied on. The plea should then go on to
specify the specific provincial limitation sections, or articles,
and the effect they have on the time from which alleged
damages, or accounting of profits can be assessed or calculated.
The pleas in this case leave the plaintiff completely in the
dark.
The defendant refuses to provide the particulars
at this stage on the grounds that such particulars
may have been required for the plaintiffs to file a
reply, but that the time for filing a reply has
elapsed. Counsel submits that discoveries have
been commenced and the defendant will be in a
better position to provide such particulars once it
has obtained more information from the plaintiffs
through these discoveries. He relies on a 1982
Federal Court decision Caterpillar Tractor Co. v.
Babcock Allatt Limited, [1983] 1 F.C. 487;
(1982), 67 C.P.R. (2d) 135 (T.D.), wherein Addy
J. said as follows at page 490 (F.C.):
Generally speaking where a party pleads in full reply and
rebuttal to a pleading on the opposite party, he is precluded
from objecting to the other party's pleading or requesting
particulars for the purpose of pleading further at a later date.
(See Dominion Sugar Co. v. Newman ((1917-18), 13 O.W.N.
38 (H.C.J.)) and Montreuil v. The Queen ([1976] 1 F.C. 528
(T.D.)).)
I fail to see where this statement can be of any
assistance to the defendant. In the case at bar the
plaintiffs have not filed a reply.
The defendant also relies on the 1976 decision of
Primose, D.J. of this Court in Riske v. Canadian
Wheat Board, [1977] 2 F.C. 143; (1976), 71
D.L.R. (3d) 686 (T.D.), wherein he held that the
application for further particulars of the statement
of claim is denied on the ground that the informa
tion sought is within the knowledge of the defend
ant. In the instant case, it surely cannot be said
that the plaintiffs already know what limitations
are referred to until they are pleaded by the
defendant.
The defendant also refers to a 1984 decision of
McNair J., Cat Productions Ltd. v. Macedo et al.
(1984), 1 C.P.R. (3d) 517 (F.C.T.D.), in which he
held that the defendants were entitled to particu
lars. He also said that the object of particulars is
to avoid surprise. The judge said as follows [at
pages 519-520]:
The object of particulars is to enable a party to know the case
of his adversary so as to avoid surprise. Particulars are ordered
more freely than in earlier times for the days of "trial by
ambush" are now gone. Courts today are insistent that plead-
ings define with clarity and precision the issues to be tried.
Where general allegations are made which in earlier times
might escape scrutiny, in these days particulars will usually be
ordered. Courts have drawn a distinction between particulars
required before pleading and those required before trial. The
purpose of particulars required to be delivered before pleading
is for the intelligent pleading by the opposite party. As to
particulars before trial, a party is generally entitled to any
particulars required to properly prepare his case for trial.
I am in general agreement with that proposition.
The plaintiffs in the instant case were entitled to
particulars before filing their reply and they now
are entitled to particulars to properly prepare for
trial. In any event, the Court has a discretion to
order that particulars be provided at any stage in
the action.
In Gulf Canada Limited v. The Tug Mary
Mackin, [1984] 1 F.C. 884; (1984), 42 C.P.C.
146; 52 N.R. 282 (C.A.), the pleadings had been
exchanged and examination for discovery of the
plaintiff had commenced, but not concluded, when
the defendant moved for particulars of a bald
allegation of negligence. The judge ordered that
particulars be delivered. The plaintiff appealed. By
a majority decision, the Federal Court of Appeal
dismissed the appeal. Heald J., after an extensive
review of the jurisprudence, concluded as follows
[at page 890]:
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 proceeded on some erroneous principle or some misap
prehension of the facts or that the order which he made is not
just and reasonable. In these circumstances, 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.
In a more recent decision, Société Des Produits
Marnier-Lapostolle v. René Rey Swiss Chocolates
Ltd., released on October 3, 1989 (T-2086-88), I
dealt with a refusal on the part of the defendant to
provide particulars to the plaintiff on the ground
that the demand was premature as discoveries
were to take place. I held that under Rule 408 (1)
every pleading must contain a precise statement of
the material facts on which the party pleading
relies, that under Rule 415(1) a pleading shall
contain the necessary particulars of any allegation,
that Rule 412(2) stipulates that raising a question
of law will not be accepted as a substitute for a
statement of material facts on which the conclu
sion of law is based. As to the demand being
premature in view of the forthcoming discoveries, I
ruled that Rule 465(3) provides that after the
defence had been filed, the party may examine
such adverse party for discovery: it follows logical
ly that the defence itself must be in accordance
with the rules, i.e., must provide the necessary
particulars, before discovery.
Consequently, the defendant will file and serve
full particulars of paragraph 52 of the Further
Amended Statement of Defence within two weeks
of the date of this order, as requested.
The second prong of the motion requires the
defendant to file and serve on the plaintiffs a
supplemental list of documents relating to the
issues raised by paragraphs 53, 54 and 55 of the
Further Amended Statement of Defence. The
defendant did file last week a list of documents,
but the plaintiffs did not have time to check the
list against the pleadings. Therefore, the plaintiffs
asked for an adjournment: if the list is satisfactory,
the matter will stop there; if not, the plaintiffs will
make another request of the defendant.
In principle an applicant is entitled to adjourn
his own motion listed on a regular motion day,
such as in the present instance, subject, of course,
to costs or other conditions the Court may impose
on the adjournment. Counsel for the defendant did
not agree to the adjournment, mainly on the
ground that he had to travel from Ottawa to
Vancouver for this hearing and that, in any event,
this motion ought to have been made in writing
without submissions from the parties, under Rule
324.
Why the Federal Department of Justice, with
offices and lawyers in all major Canadian cities,
including Vancouver, should have to send someone
from Ottawa to appear on this motion, which
counsel himself described as one of such minor
importance that it could be dealt with under Rule
324, boggles the mind. Such an attitude—and the
obvious lack of cooperation between the parties—
may explain in part why this case, launched in
1982, is still chugging along at its own leisurely
and costly pace in the year 1990.
Consequently, the second branch of the motion
is adjourned sine die and 'any attempt to revive it
shall be done in writing under Rule 324. Each
party will bear its own 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.