• Motion to Strike and for Particulars Denied; Elevated Costs Ordered for Breach of Settlement Privilege
  • May 10, 2016 | Authors: Adrian J. Howard; Beverley Moore; Chantal Saunders
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Stryker Corporation v. Umano Medical Inc., 2016 FC 378

    Umano brought a motion to strike portions of the Statement of Claim, and in the alternative for further and better particulars. The motion further requested documents pursuant to Rule 206. The Court denied the motion in its entirety.

    The Court held that in order to succeed in a motion to strike, the moving party must demonstrate, beyond doubt, that the case cannot possibly succeed at trial. In this case, the Court held that the Defendants are told which physical characteristics infringe, and are thus capable of reviewing the claims. Furthermore, there was no reason to find the claim of inducement has no reasonable chance of success. In addition, while the Court has held that allegations of wilful and knowing infringement are alone insufficient to support a claim for punitive damages, where those allegations are sufficiently supported in the statement of claim, the punitive damages claim can be maintained, as it is not for the Court on a motion to strike to determine the chances of success.

    With respect to particulars, the Court held that in order to be successful on such a motion, details are required as to what information is needed for pleading and why the party would be unable to instruct counsel without such information. In this case, the affidavit did not contain such information. With respect to the Rule 206 request, the Court held that the fact that there may be documents in existence which relate to the issues in the pleadings, does not transform these documents into documents referred to in the pleading.

    The Plaintiffs requested solicitor client costs in the amount of $10,000 because the Defendants disclosed in their motion materials, an offer to settle with particulars. The Plaintiffs contended this was a breach of settlement privilege which undermined their position on the issue before the Court. The Court held that this was a breach of confidence. However, although it was of the utmost serious nature, it did not undermine the Plaintiff's position on the merits of the case or on the request for particulars. But, this sort of behaviour ought to be discouraged, as it is in the nature of improperly affecting the course of justice. Thus costs from the high end of Column IV of Tariff B were ordered, payable forthwith.