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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.
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