Wednesday, November 2, 2011

Repeating the Claims is Not an Adequate Pleading of Material Facts

Bertelsen v. Automated Tank Manufacturing 2011 FC 1219, O’Keefe J
The issue in this motion is the particularity required of the pleadings. The allegation of material fact in the pleadings specified the city in which the infringement was alleged to have taken place and a rough date range, but otherwise simply repeated the claim verbatim as constituting the specific acts of infringement. O’Keefe J, reviewing a decision of the prothonotary de novo as being vital to the final issue in the case, refused to allow the amendment to the statement of claim (which would have been the third amendment) and consequently dismissed the action on the basis that the pleadings did not disclose a cause of action. This appears to be a reasonably straightforward application of Dow Chemical Co v Kayson Plastics & Chemicals Ltd (1996), 47 CPR 1 (Ex Ct) and Precision Metalsmiths Inc v Cercast Inc (1966), 49 CPR 234 (Ex Ct). While the claims themselves describe elements which are factual in nature, e.g. “providing a vertical shaft extending below ground,” what is required is “a description of the particular process that the defendants are alleged to have made or used” (Precision Metalsmiths at 247). It is true that if the defendant did infringe, then the specific acts carried out by the defendant will be described by the claims, so in that sense repeating the claims would describe the defendant’s acts. However, the broader principle appears to be the same as is applied in discovery, namely that litigation cannot be used as a fishing expedition: see eg 2008 FCA 287. The facts pleaded must therefore relate to specifically identifiable acts by the defendant.

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