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T-4449-80
AM International, Inc. (Plaintiff) v.
National Business Systems, Inc., Leigh Instru ments Limited and J. Stahle Industries, Inc.
(Defendants)
Trial Division, Walsh J.—Ottawa, June 18, 1981.
Practice — Motion to strike pleadings — Plaintiff, in amended reply and defence to counterclaim, merely denied the allegations in certain paragraphs of the statement of defence — Court order stated that a mere denial of facts which appear from documents of record is clearly insufficient — Subse quently plaintiff denied allegations "as stated", but also pleaded that the allegations were irrelevant to the proceedings and that the documents referred to spoke for themselves — Whether amended pleadings are sufficiently precise to comply with Court order — Motion dismissed — Federal Court Rule 321(2).
MOTION. COUNSEL:
No one appearing for plaintiff. J. N. Landry for defendants.
SOLICITORS:
No one appearing for plaintiff.
Ogilvy, Renault, Montreal, for defendants.
The following are the reasons for order ren dered in English by
WALSH J.: Defendants move to strike out para graphs 5(a), 5(b), 21(a),(b),(c),(d),(e) and (f) of the amended reply and defence to counterclaim on the ground that the said amended paragraphs made pursuant to the order of June 5, 1981 do not provide particulars in the form of a substantial answer of the denials in the said above-mentioned paragraphs. Leave is also sought to file and serve the motion without the two clear days notice required by Rule 321(2).
Counsel for defendants was heard on the motion. Plaintiff's counsel had filed written sub missions objecting to the hearing on short notice and suggesting that the proper time and place should be in Toronto on a regular motion day rather than at a special hearing in Ottawa on short notice pursuant to the direction of the Associate Chief Justice. Alternatively plaintiff's counsel sub mits in writing that the further reply and defence to the counterclaim does comply with the order and that the said paragraphs do provide a substan tial answer and defence to the allegations con tained in the statement of defence and counter claim, are not evasive and state plaintiff's position of which defendants are clearly aware so that the present motion is frivolous and vexatious.
Although defendants' counsel had not had the opportunity until today to consider these submis sions it is evident that there is nothing in them to take him by surprise or cause him prejudice and it is for the Court to decide whether these amended paragraphs are sufficient to comply with the order of June 5. Permission was therefore given to pro ceed in the absence of counsel for plaintiff, and waiving the 2-day delay.
Previously plaintiff had merely denied the alle gations in certain paragraphs of the statement of defence and defendants had contended that this was insufficient as the said paragraphs referred to statements made by plaintiff in various patent applications which were a matter of record.
After reviewing the Rules the Court order of June 5, 1981 stated:
These representations were either made or not made in connec tion with the patent applications referred to, and if they were in fact made Plaintiff should admit this unless it is the intention to deny that the persons who made the representations were not authorized to do so on behalf of Plaintiff, in which event this should be stated. A mere denial of facts which apparently appear from documents of record is clearly insufficient.
The paragraphs in the further amended reply and defence to counterclaim, which defendants
now contend do not comply with the order, replace the former mere denial with the words "denies the allegations as stated" but also plead that the alle gations are irrelevant to the proceedings herein, and that in any event the documents referred to speak for themselves. Certainly both the latter two allegations constitute proper pleading. While there might be some doubt as to whether the addition of the words "as stated" to the denials constitutes by itself a compliance with the order, plaintiff is entitled, if it chooses, to contend that the para graphs in defendants' said pleading do not properly represent the contents of the written documents relied on, which must speak for themselves. The addition of the words "as stated", accompanied by the indication of pleading the irrelevancy of the documents relied on and the self-evident statement that the documents speak for themselves makes the amended pleadings sufficiently precise to comply with the order and place the issues before the Court, and defendants can have no real doubt of plaintiff's position on the issues raised in these paragraphs.
The motion is therefore denied.
ORDER
Defendants' motion for striking out paragraphs 5(a), 5(b), 21(a),(b),(c),(d),(e), and (f) of the amended reply and defence to counterclaim is dismissed with costs.
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