A-157-76
Champion Packaging Corp. (Appellant) (Plain-
tiff)
v.
Triumph Packaging Corporation (Respondent)
(Defendant)
Court of Appeal, Jackett C.J., Heald and Urie
JJ.—Ottawa, June 8, 1976.
Practice—Striking from pleadings—Whether striking out
would narrow examination for discovery—Effect of applica
tions to strike and appeals—Where necessary—Federal Court
Rules 2(2), 408(1).
Appeal from the judgment of the Trial Judge striking out a
portion of paragraph 5 of the statement of claim which pleaded
that the defendant infringed the plaintiffs registered industrial
design through its President "who is believed to be responsible
for directing the activities of the Defendant Corporation and as
such, is believed to have been intrumental in obtaining the
infringing products as outlined in this paragraph ...."
Held, the appeal is dismissed. The Trial Judge was justified
in striking the words on the bases: (1) the words "is believed"
remove this pleading from the category of "a precise statement
of material facts" as required by Rule 408(1); (2) the question
of whether the President or someone else acted on behalf of the
defendant is irrelevant to the cause of action pleaded; (3) the
Trial Judge may well have regarded the words struck out as
vexatious in that they create an ambiguity as to whether the
cause of action is, or is not, limited to things directed by the
President. The presence of the offending reference to the
President would not enlarge the scope of the examination for
discovery or the production of documents in any way and its
having been struck out will not narrow such discovery.
APPEAL.
COUNSEL:
A. David Morrow for appellant.
G. Alexander Macklin for respondent.
SOLICITORS:
Herridge, Tolmie, Gray, Coyne & Blair,
Ottawa, for appellant.
Gowling & Henderson, Ottawa, for
respondent.
The following are the reasons for judgment
delivered orally in English by
HEALD J.: It has not been established to my
satisfaction that the learned Trial Judge was in
error in striking out that portion of paragraph 5 of
the statement of claim which pleaded that the
defendant infringed the plaintiff's registered indus
trial design through its President, one Steven
Roseman "who is believed to be responsible for
directing the activities of the Defendant Corpora
tion and as such, is believed to have been instru
mental in obtaining the infringing products as
outlined in this paragraph ...."'
Initially, as it seems to me, this pleading is
defective in that, far from alleging that Roseman
was responsible for the activities of the defendant
and as such, was instrumental in obtaining the
infringing products, the words "is believed" are
used, the effect of which is to remove this pleading
from the category of "a precise statement of the
material facts" as required by Rule 408(1). Thus,
in my view, on this ground alone, the learned Trial
Judge was justified in striking the pleading.
Secondly, it is my opinion that the question of
whether Steven Roseman, or someone else acting
on behalf of the defendant corporation was respon
sible for obtaining the alleged infringing product is
quite irrelevant to the cause of action pleaded
herein—i.e.,—infringement of the plaintiff's regis
tered industrial design by the defendant through
the manufacture, production and offer for sale of
infringing products and thus can have no effect on
the outcome of subject action. Such a pleading
may, according to the circumstances, be embar
rassing and the learned Trial Judge might, in his
discretion, decide that it should be struck out.
Thirdly, in my view, the learned Trial Judge
may well have regarded the words struck out as
vexatious in that they create an ambiguity as to
whether the cause of action is, or is not, limited to
things directed by Steven Roseman.
Accordingly, and for the foregoing reasons, I am
of the opinion that this appeal should be dismissed.
However, before leaving this matter, I wish to
comment on a submission in the respondent's
memorandum to the effect that a substantial part
of the harm resulting from irrelevant pleadings can
occur before trial since the range of examination
for discovery is limited by the pleadings. In my
view, on the facts of this case, that submission
would not be a valid reason for striking out the
pleading here impugned since the propriety of any
I [Reasons for judgment not circulated—Ed.]
question on discovery must be determined on the
basis of its relevance to the facts pleaded in the
statement of claim as constituting the cause of
action rather than on its relevance to facts which
the plaintiff proposes to prove to establish the facts
constituting its cause of action 2 .
Thus, on my view of the matter, the presence of
the offending reference to Steven Roseman, would
not enlarge the scope of the examination for dis
covery or the production of documents in any way
and its having been struck out will not narrow such
discovery.
My purpose in making these comments was to
indicate that applications to strike, and appeals
from orders disposing of such applications, should
not be taken unless there are real problems to be
solved and, at least in this case, there would seem
to be doubt whether there was any such problem.
(Compare Rule 2(2)) 3 .
Accordingly I would dismiss this appeal with
costs.
* * *
JACKETT C.J. concurred.
* *
URIE J. concurred.
2 See: Koninklijke Nederlandsche Stoombootmaatschappij
N.V. v. The Queen [1967] 2 Ex.C.R. 22 at 29.
3 Rule 2....
(2) These Rules are intended to render effective the sub
stantive law and to ensure that it is carried out; and they are
to be so interpreted and applied as to facilitate rather than to
delay or to end prematurely the normal advancement of
cases.
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.