Federal Court Decisions

     T-2164-89

BETWEEN:

     THE LUBRIZOL CORPORATION

     and LUBRIZOL CANADA LIMITED

     Plaintiffs

     - and -

     IMPERIAL OIL LIMITED

     and its subdivision PARAMINS

     Defendant

     REASONS FOR ORDER

ROULEAU, J.

     This is an application for an order setting aside the decision of the Associate Senior Prothonotary dated April 7, 1997, wherein he refused to grant leave to the defendant to amend its Statement of Defence and Counterclaim in the form submitted.

     The plaintiffs commenced their action in this Court by way of Statement of Claim alleging that the defendant had infringed their Canadian Letters Patent 966,119. On March 19, 1997, the defendant sought leave to amend its Fresh Statement of Defence and Counterclaim. The hearing of the application took place before Giles, A.S.P. on April 7, 1997. The Associate Senior Prothonotary allowed certain of the amendments but disallowed others for the following reasons as set out in pp. 3 - 4 of his decision:

The final 3 lines of page 5 and the first 4 lines of page 6, deal with a specific Lubrizol product. It is alleged that this product was sold, but it is admitted that the defendant has no particulars of sales. This is a non-supported allegation which cannot be allowed. The next 3 lines would expand the proceeding lines, as the proceeding lines cannot be permitted nor can the lines purporting to expand the allegation to the rest of the type.

The last 3 lines of paragraph 13, do not apparently refer to any specific type, but attempt to hold open the door for the exploration of types of invalidity regarding which no specific particulars have been given. These 3 lines should not be included in any amendment.

With regard to paragraph 14, the last 3 lines on page 6 and the first 4 lines on page 7, deal with the product mentioned in the last 3 lines of page 5. This allegation in paragraph 14 refers to the sales of this product being particularized above. The only particulars of sales is found in paragraph 13, which as stated hereinabove indicates the particulars of the sale are not known, so this allegation can not stand. The last 3 of the first 7 lines would expand with further instances of the type of the proceeding product, as the allegations to that product are not sufficiently particularized the attempt to expand the instances of the type must also fail.

The last 3 lines do not apparently refer to any specific type, and if that is so, they can not be used to hold open the door for fishing expedition. If I am wrong, and the lines attempt to expand a specific allegation, the lines are redundant as the only existence of a type sufficiently particularized in paragraph 14 has already been relied on for expansion purposes in the first 3 of the last 6 lines of page 6.

Because of these allegations unsupported by fact, portions of the draft Amended Defence and Counter Claim could be struck if the amendment were to be permitted. This amendment is therefore not permitted. However, no objections were maintained with regard to the remainder of the proposed amendment so a further attempt to amend will be permitted.

     The defendant now seeks to have the decision set aside on the grounds that the Associate Senior Prothonotary erred in law in refusing to allow the amendments to the Statement of Defence and Counterclaim.

     I am dismissing the appeal for the following reasons. In accordance with Rules 408 and 415 of the Federal Court Rules a party is required to plead the precise material facts upon which it relies and to provide proper particulars. In Wewayakum Indian Band v. Canada (1991), 129 N.R. 385, the Federal Court of Appeal made it clear that amendments of pleadings which do not comply with these rules will not be permitted by the Court.

     Here, the basis of the Associate Senior Prothonotary's decision is that the disallowed amendments contain either allegations which are not supported by any material fact or which constitute attempts by the defendant to indulge in a "fishing expedition". Having considered the evidence before me as well as the submissions of counsel, I agree with the learned Prothonotary.

     The defendant makes several allegations of prior knowledge but does not plead any particulars of such prior knowledge. It also alleges sales of products but does not plead particulars of the compositions of the products which it is alleged were sold, the dates on which they were sold, nor the manner of the sale which affords the basis for asserting that there was a disclosure or use of the invention in such a manner that became available to the public. The document upon which the defendant relies, an internal draft of a laboratory procedure for the preparation of a particular mixture, does not in any way support the allegations made in the Fresh Amended Statement of Defence and Counterclaim.

     For these reasons the application is dismissed. Costs to the plaintiffs in any event of the cause.

JUDGE

OTTAWA, Ontario

September 16, 1997