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T-3772-80
Hassan Ismail, Ahamed Saeed, Abdul Gadir Ibrahim Manik, Mohamed Rasheed, Mohamed Waheed, Ahamed Rasheed, Abdulla Ibrahim, Abdulla Aboubakuru, Mohamed Manik, Hassan Ahamed, Hassan Abdulla, Mohamed Ali and Ali Moosa (Plaintiffs)
v.
The owners and all others interested in the ship Golden Med and the ship Golden Med (Defend- ants)
Trial Division, Walsh J.—Ottawa, January 14, 1981.
Practice Motion to strike pleadings — Motion by
defendants to strike out paragraph 9 of plaintiffs' amended statement of claim Amendment made pursuant to Rule 421 No application by defendants to have amendment disal
lowed pursuant to Rule 422 Whether this Court can at this stage strike the paragraphs added to the proceedings by the
amendment — Motion maintained Rule 422 does not remove any discretion from the Court to deal with a motion pursuant to Rule 419 to strike an allegation improperly plead ed — Federal Court Rules 419, 420(1), 421, 422.
MOTION pursuant to Rule 324. COUNSEL:
W. Spicer for plaintiffs. Jacques Laurin for defendants.
SOLICITORS:
McInnes, Cooper & Robertson, Halifax, for
plaintiffs.
McMaster Meighen, Montreal, for defend ants.
The following are the reasons for judgment rendered in English by
WALSH J.: Defendants move to strike paragraph 9 of plaintiffs' second amended statement of claim which reads as follows:
Subsequent to the commencement of action, and subsequent to the taking of Commission evidence in Halifax, Mr. Cardoza, an employee, servant or agent of the Defendants attended at Male, Republic of Maldives, the residence of the Plaintiffs. While there he wrongfully and fraudulently attempted to have the Plaintiffs discontinue the within action.
In addition, Mr. Cardoza has attempted, while at Male, to have certain documents which should be provided to the Plâin-
tiffs withheld by the Government. These documents are ma terial to the presentation of the Plaintiffs' case. The Plaintiffs say that this conduct on the part of Mr. Cardoza constitutes illegal and fraudulent activity on the part of the Defendants, their servant or agent, designed entirely to suppress material evidence.
The Plaintiffs rely, inter alia, on the facts of this paragraph in support of their claim for punitive damages against the Defendants.
The motion is submitted pursuant to Rule 324 on written submissions of both parties which are extensive and complete including references to jurisprudence.
Plaintiffs made the amendment pursuant to Rule 421. Rule 422 reads as follows:
Rule 422. Where any party has amended his pleading under Rule 421(1), any other party may, within two weeks after the service on him of the amended pleading, apply to the Court to disallow the amendment or any part thereof, and the Court may, if satisfied that the justice of the case requires it, disallow the same.
and although there is some question as to whether the amendment was properly served on defendants, defendants in any event took no action to have it disallowed within two weeks after becoming aware of it. Plaintiffs contend therefore that the Court cannot now strike the paragraphs added to the proceedings by the amendment. It is to be noted however that the Rule uses the word "may" and that the Court "may, if satisfied that the justice of the case requires it, disallow the same". Rule 420(1) reads as follows:
Rule 420. (I) The Court may, on such terms, if any, as seem just, at any stage of an action, allow a party to amend his pleadings, and all such amendments shall be made as may be necessary for the purpose of determining the real question or questions in controversy between the parties.
I believe that the two sections must be read in conjunction and that Rule 422 cannot have the effect of removing any discretion from the Court to deal with a motion pursuant to Rule 419 to strike an allegation which is improperly pleaded. Surely if an allegation should be struck pursuant to Rule 419 then a mere procedure failure by the opposing party to avail itself of an opportunity to have an amendment to a pleading struck pursuant to Rule 422 within two weeks would not justify retaining in the pleading an improperly pleaded paragraph.
Plaintiffs contend that the paragraph is properly included, although it deals with incidents which allegedly occurred only subsequent to the com mencement of the action, as the foundation for the claim under paragraph 10(vii) of the second amended statement of claim which claims "Puni- tive damages", and which is not a paragraph which was added by the amendment, but appeared in the original statement of claim.
The action is a claim for seamen's wages based on contract, and it would appear that if any puni tive damages can be awarded arising from a breach of contract, which is doubtful, such puni tive damages would clearly have to relate to issues arising out of the contract. If a defendant during the course of proceedings attempts to induce the plaintiffs, behind the back of their attorney to discontinue their action, or attempts to induce third parties, not parties to the proceedings to withhold documents necessary to the presentation of plaintiffs' case, these actions, if indeed they have caused any damage to plaintiffs, might con ceivably give rise to a separate action for tort, but that is clearly a new cause of action, arising subse quent to the present proceedings, and not directly connected with plaintiffs' claim, but merely with what may be improper means adopted to prevent it from succeeding. I do not believe that the mere mention of punitive damages as one element of the claim in the conclusions of plaintiffs' proceedings can justify allegations relating to what is really a new cause of action which plaintiffs are attempt ing to incorporate in their original claim. More over this Court would clearly not have jurisdiction over any such claim for damages arising from tort which clearly cannot be brought within section 22 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
Defendants' motion to strike paragraph 9 of plaintiffs' second amended statement of claim is therefore maintained with costs.
ORDER
Paragraph 9 of plaintiffs' second amended state ment of claim is struck with costs.
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