COURT FILE AND PARTIES
COURT FILE NO.: 10-48545
DATE: January 6, 2012
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Titus Labs Inc, Plaintiff/Responding Party
AND:
Bolton James Limited, Andrew Cowan and Brett Gribble, Defendants/ Moving Parties
BEFORE: Master Pierre E. Roger
COUNSEL: Todd J. Burke, counsel for the Plaintiff
Brad R.G. Moore, counsel, for the Defendants
HEARD: January 5, 2012
ENDORSEMENT
Overview
1This is a motion by the Defendants seeking particulars of allegations made in certain paragraphs of a recently Amended Statement of Claim dealing with copyright infringement in computer software.
2I have considered the submissions made at the motion, the materials filed on this motion and the authorities provided by the parties.
Disposition
3Subject to paragraph 4, the motion is dismissed and the Defendants shall deliver their Amended Statement of Defence within 20 days of this Order being effective, with costs payable by the Defendants to the Plaintiff in the amount of $6,000.00.
4The effect of paragraph 3 is stayed until January 31, 2012 and paragraph 3 will be set aside if prior to 17:00 on January 31, 2012 the Defendants deliver an affidavit(s) from the Defendants addressing the Defendants lack of knowledge relating to the allegations as well as why and how particulars are required to enable them to plead in defence of these allegations, in which case leave is granted to the Defendants for this motion to return before this Court. If no such affidavit(s) is delivered by the Defendants then this Order is effective as of February 1, 2012. In the event that an affidavit(s) is delivered, the following timetable shall be applicable:
a. affidavit(s) by the Defendants by January 31, 2012;
b. any responding affidavit(s) by February 20, 2012 and any reply affidavit by February 27, 2012;
c. any cross-examination by March 30, 2012;
d. this motion is then to return before this court at the earliest available and convenient time; and
e. issues arising from the above are to be dealt with by case conference.
5If this motion is to return, the Defendants should, in their factum, address more specifically what is contained at paragraphs 33, 34 and 35 of the Plaintiff’s factum.
Analysis
6The allegations contained in the Amended Statement of Claim, at issue in this motion, with the particulars provided to date, are not what I would consider bald allegations. The Defendants therefore have the onus of establishing that the particulars sought are not within their knowledge and that the particulars sought are necessary for them to plead. The affidavit from the offices of their lawyers, filed on this motion, is not sufficient.
7Without any evidence addressing this onus, in the circumstances of this case, this Court is not prepared to exercise its discretion (Rule 25.10) to order particulars. The cases in support of this position are outlined at paragraphs 24 to 28 of the Responding Party’s factum. The amount of costs ordered is on a partial indemnity basis and is a reasonable amount for this motion.
8Considering the importance of this case to the parties (including that the amount sought for damages exceeds $60 million), proportionality principles and current restrictions to examinations for discovery, all aimed at streamlining the litigation process, the Court exercises its discretion and grants leave for this motion to return on conditions as outlined above.
Master Pierre E. Roger
Date: January 6, 2012