Pointblank Design Inc. v. Colonial Concepts Inc.

Court File No.: CV-10-414512

Motion Date: September 30/13

In attendance:
P.B. Limpert, for the defendant 362-0823 (f.)

A. Bobker/M. Grainger, for the plaintiff 361-1398 (f.)

Endorsement:

The defendant seeks an Order striking out paragraph 23 of the plaintiff’s reply and defence to counterclaim. For the reasons that follow, the defendant’s motion is denied.

The court’s reasons:

The defendant has pleaded to the impugned paragraph. Paragraph 23 has been continued in a later amended reply and defence to counterclaim—amended in response to new grounds of defence added in September/12. The defendant has twice amended its defence and counterclaim—the first time being in February/12.

The plaintiff says that it has attempted on a number of occasions to have the defendant particularize its allegations in the impugned paragraph and hoped to be able to resolve the issue without need of a motion. I accept that this is so. But I also accept that the particulars sought were not/are not needed by the defendant in order to plead in that it has already delivered three forms of statement of defence and counterclaim—even after it first requested particulars of paragraph 23. It is noteworthy that the plaintiff’s original reply and defence to counterclaim was delivered in February 2011 and, yet, no motion for particulars or motion to strike was brought as at then.

The defendant introduced allegations of defects in their pleading as justification for termination of its license agreement with the plaintiff, for a system used to build log homes. The plaintiff says that, having pleaded that there are problems with log homes that it built over the years, the defendant has put in issue the cause of those problems. I agree. The plaintiff’s allegation that any problems were not caused or contributed by it but, rather, by the defendant is a relevant allegation. To foreclose the ability of the plaintiff to advance an alternative theory for the defects that the defendant alleges, at the pleadings stage (and on a R. 25.11 motion)[^1], would be to favour the defendant’s theory of the case and, in the words of plaintiff’s counsel, “…would amount [improperly and unfairly] to deciding disputed facts on a motion to strike”.

There is nothing before me to substantiate the claim made by the defendant that the plaintiff’s allegations are clearly and plainly incapable of proof or otherwise an abuse of process. Paragraph 23 alleges material facts capable of proof, i.e. defects in workmanship, defects in materials supplied and defects in installation services. While I recognize and accept that the evidence on which the plaintiff relies has not been shared with the defendant, I do not accept that the allegations necessarily have no “foundation in fact” (see Caterpillar Tractor Co. v. Babcock Allatt Ltd. (1982), 67 C.P.R. (2) 135 (Fed. Ct.), at p. 139). The plaintiff says that it has no knowledge of the defects alleged by the defendant (indeed, it pleads that they are “a pretext” for the defendant’s termination of the license agreement, as alleged in the statement of claim) but that, if those defects exist, they were caused or contributed to by something that the defendant did or didn’t do.[^2] Once discovery on the issue of defects takes place[^3], the question of whether or not the allegations are supportable can be determined.

“Striking a pleading is a draconian measure. [A plea]…should not be struck out on the ground that it is vexatious, frivolous or an abuse of the process of the [c]ourt, unless the plaintiff’s claim is so clearly futile that it has not the slightest chance of succeeding” (see: Apotex v. Syntex Pharmaceuticals (2005), 2005 FC 1310, 44 C.P.R. (4th) 23 (Fed. Ct.), at paras. 31-33). Taking the allegations of fact in paragraph 23 as being at least capable of being proved, as I am to do in a R. 25.11 motion, I do not share the defendant’s view as to the futility of impugned pleading.

If the parties require revisions to the litigation timetable, having regard to the timing of my decision, or if they require me to rule on the issue of costs, I may be spoken to. My ruling is made without prejudice to the defendant’s right to bring a summary judgment motion, anon—if and as may be appropriate.

December 2/13 ______________________

[^1]: I note that a Master has no jurisdiction to decide a R. 21.01 motion.

[^2]: See: paragraph 14(e) of the affidavit of Lori-Anne Deborba, sworn August 22/13.

[^3]: In the instant case, a distinguishing factor is that the issue of defects of any kind was not raised by the defendant until delivery of its statement of defence and counterclaim. Mr. Clarke says that “[t]he manifestation of any alleged problems with homes built by the defendant using the PointBlank System is within [its] knowledge…[and] not [the knowledge of the plaintiff]…” (see: affidavit of Mr. Gregory Clarke, sworn December 9/11). Thus, I do not agree, as has been argued on behalf of the defendant, that to permit R. 23 to stand is to invite the plaintiff to embark on a fishing expedition.