T-5768-81
Flexi-Coil Ltd. (Plaintiff)
v.
Rite Way Manufacturing Ltd. and Leslie Hulic-
sko (Defendants)
INDEXED AS: FLEXI-COIL LTD. V. RITE WAY MANUFACTURING
LTD. (T.D.)
Trial Division, Giles A.S.P.—Toronto, October 24
and 27, 1989.
Judges and courts — Stare decisis — Prothonotary bound
by decision of Trial Division judge — Consistency in law
foundation of rule of law — Decisions of judge of same level
most persuasive — Right to appeal prothonotary's decision to
trial judge further suggesting trial judge's decisions should be
followed in all cases.
Practice — Pleadings — Motion to strike — Reconsidera
tion of order striking paragraph of pleadings invoking Statute
of Monopolies in light of Dub J.'s reasons in Burnaby
Machine & Mill Equipment Ltd. v. Berglund Industrial
Supply Co. Ltd. et al. — Paragraph struck on ground capable
of alternative construction — Subsequent motion to strike
"without prejudice" to permit inclusion of claim based on
Statute of Monopolies — Although similar situation to Bur-
naby
in that applicability of. Statute of Monopolies raised on
preliminary motion, Prothonotary not able to leave matter to
be decided by judge at trial — Even if referred matter
pursuant to R. 336(2), determination to be made on prelim
inary interlocutory motion — Earlier order confirmed as not
inconsistent with Burnaby and no cause of action based on
Statute of Monopolies.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 336(2).
Statute of Monopolies, 21 Jac. 1, c. 3.
CASES JUDICIALLY CONSIDERED
APPLIED:
Aca Joe International v. 147255 Canada Inc. et al.
(1986), 10 C.P.R. (3d) 301 (F.C.T.D.); Peck & Co. v.
Hindes, Ld. (1898), 15 R.P.C. 113 (Q.B.).
DISTINGUISHED:
Burnaby Machine & Mill Equipment Ltd. v. Berglund
Industrial Supply Co. Ltd. et al. (1982), 64 C.P.R. (2d)
206 (F.C.T.D.).
AUTHORS CITED
Halsbury's Laws of England, vol. 10, 3rd ed. London:
Butterworth & Co. (Publishers) Ltd., 1955.
Jowitt, E. Dictionary of English Law, London: Sweet &
Maxwell Ltd., 1959, "duplicity".
COUNSEL:
Gordon S. Clarke for plaintiff.
Timothy J. Sinnott for defendants.
SOLICITORS:
Gordon S. Clarke, Toronto, for plaintiff.
Barrigar & Oyen, Toronto, for defendants.
The following are the reasons for order ren
dered in English by
GILES A.S.P.: An order of mine striking out a
plea based on the Statute of Monopolies, 21 Jac.
1, c. 3 from a counterclaim was appealed to Mr.
Justice Muldoon who directed that I reconsider my
impugned order to strike out the paragraph of the
pleadings in which the Statute of Monopolies is
invoked, and to confirm or vary that order as I saw
fit after patently considering the effect thereon of
Mr. Justice Dubé's reasons in the Burnaby case
(cited (1982), 64 C.P.R. (2d) 206); and if counsel
may desire to argue the point, to hear counsel for
each side on that matter only before rendering my
confirmed or varied order which I was thereby
directed to do, all without costs. Counsel for the
plaintiff (defendant by counterclaim) asked that I
hear representations. Counsel for the defendant
(plaintiff by counterclaim), having questioned the
propriety of hearing submissions on short notice
before the time for filing notice of appeal expired,
agreed to attend to make submissions in the inter
est of convenience of opposing counsel and of the
Court.
The first issue raised was that of stare decisis,
that is to say, whether or not a prothonotary is
bound by a decision of a judge of the Trial Divi
sion. There is perhaps a valid question because any
decision of a prothonotary could have been made
by a trial judge and an order of a prothonotary is
to be considered an order of the Court in stated
circumstances. Argument was therefore directed to
the question of the binding effect of a decision of
one judge on another of the same level. In my
view, the foundation of the rule of law is a consist
ency in the law which can only be achieved if there
is a consistency in the decisions made, no matter
what judge or other judicial officer makes them.
This principle is sufficient to render most persua
sive the decisions of a judge at the same level.
Where the decision cited as authority is one of a
judge to whom an appeal could be made, a further
consideration, namely practicality, applies. It
would be most impractical to render a decision in
the knowledge that it would be reversed on appeal.
Therefore, without question, the decision of a
judge of the Trial Division (to which an appeal
may be made from the decision of a prothonotary),
should, in all cases, be followed by a prothonotary.
It follows then, that should I consider the deci
sion in Burnaby Machine & Mill Equipment Ltd.
v. Berglund Industrial Supply Co. Ltd. et al.
(1982), 64 C.P.R. (2d) 206 (F.C.T.D.), applicable
to the facts before me, I should without question
follow it.
The second issue argued before me was whether
the situation in Burnaby v. Berglund was on all
fours or substantially so with the case at bar. In
Burnaby v. Berglund, Mr. Justice Dubé was con
sidering a motion to strike on the grounds that the
Statute of Monopolies was not a part of the law of
Canada. He decided that the question should not
be decided on a preliminary motion but should be
left to be decided by the judge at trial. In the
present case, I had struck the pleading with regard
to the Statute of Monopolies, not on the ground
that the statute was not a part of the applicable
law of Canada or any part of it, but rather,
assuming the statute to be applicable, on the
grounds of what I described as duplicity.
Parenthetically, I should state, that while I do
not read the order of Mr. Justice Muldoon as
requiring or even permitting me to reconsider my
decision other than as would be required by a
re-reading of the reasons of Mr. Justice Dubé, I do
think I should make reference to what appears to
be a misuse of language on my part. In my reasons
for striking reference to the Statute of Monopo
lies, I described the failing I saw in the pleadings
as duplicity. Counsel referred me to the entry with
regard to "duplicity" in Jowitt's Dictionary of
English Law. The entry reads as follows:
Duplicity, A pleading is double, or open to the objection of
duplicity, when it, or a portion of it, contains more claims,
charges or defences than one. Formerly the general rule was
that a pleading ought not to contain more than one claim,
charge or defence, but it has gradually been relaxed, and now
no longer applies to civil pleadings (except so far as they may
be embarrassing or otherwise objectionable) or to criminal
proceedings (R. v. Grizzard (1913) 9 Cr.App.R. 268).
It is quite apparent that "duplicity" as defined by
Jowitt describes the practice of including more
than one claim in a pleading. It is, therefore,
probable that I used the wrong word in my rea
sons. The failure I saw in the pleading was that the
plaintiff by counterclaim had charged the defen
dant by counterclaim with one or other of two
offences. I had justified the use of the word
duplicity in my own mind from a reading of part of
paragraph 707 in volume 10 of Halsbury's Laws
of England, 3rd Edition, at page 390. The relevant
part of the paragraph reads as follows:
707. Allegation must be positive. The material allegations in
an indictment must be positive and direct and free from
duplicity and repugnancy. Thus, a count in an indictment must
not charge a defendant with one or other of two offences, and
must not be capable of being construed as applying to two
different offences without stating which one is charged. If an
enactment creates a duty to do either of two things there must,
to constitute an offence, be a failure to do both acts. An
indictment must not be double, that is no single count must
charge the defendant with two or more offences; but a defen
dant may be charged with committing several offences. [Foot-
notes omitted.]
I should have avoided ambiguity in my reasons by
describing what I found to be fatal in the pleading
as "the capability of being construed as applying
to two different offences without stating which one
is charged". Perhaps I could have shortened this to
"capable of alternative construction" without
misuse of the language.
Having struck the allegations with respect to the
Statute of Monopolies, I was then asked that I
strike without prejudice. That is, I was in effect
asked for leave to amend to include a claim based
on the Statute of Monopolies. In such circum
stances I was in a somewhat similar situation to
Mr. Justice Dubé, in that I was being asked to
determine the applicability of the Statute of
Monopolies on a preliminary interlocutory motion.
However, I was not, in my view, in the position of
being able to leave the matter to be decided by the
judge at trial. Had I taken advantage of Rule
336(2) [Federal Court Rules, C.R.C., c. 663] and
referred the matter, the decision would have had to
be made by a motions judge not a judge at trial. If,
as I did, I decided the matter, whichever way I
decided it and however far the matter was
appealed, the determination of applicability would
have been made on a preliminary interlocutory
motion. I note that Mr. Justice Dubé was not
determining the level at which determination
should be made but the stage of the proceedings.
Mr. Justice Dubé and the judge who would hear
the issue at trial were both judges of the Trial
Division.
In my view, the fact situation which faced me
was sufficiently different from that facing Mr.
Justice Dubé, to result in my not being bound by
his decision.
At the rehearing I asked counsel if there was
any way in which I could comply with the spirit of
Mr. Justice Dubé's order and postpone the deci
sion until trial. Counsel for the defendants suggest
ed that I should grant the right to amend without
prejudice to the plaintiff's right to seek to strike at
trial. In my view, the intent of Mr. Justice Dubé's
order was that the then undecided question of the
applicability of the Statute of Monopolies should
be decided at a trial and not on an interlocutory
motion. Since that time Mr. Justice Collier has
decided (in Aca Joe International v. 147255
Canada Inc. et al. (1986), 10 C.P.R. (3d) 301
(F.C.T.D.)) that even if, as he doubted, the statute
is in force in Canada, this Court does not have
jurisdiction. In my view, permitting an amendment
would have been to disregard the decision in Aca
Joe.
Counsel for the defendants addressed argument
to the correctness of my decision to strike and
counsel for the plaintiff addressed argument to the
correctness of my determination that the Statute
of Monopolies was not a part of the law in the
prairies. In my view, both these matters were
outside the terms of the order of Mr. Justice
Muldoon.
Since giving my decision from the Bench to
confirm my previous order, it has occurred to me
that having decided on the authority of Peck &
Co. v. Hindes, Ld. (1898), 15 R.P.C. 113 (Q.B.)
and Aca Joe, that in this case there was no cause
of action based on the Statute of Monopolies. It
would have been more in keeping with the princi
ples governing interlocutory motions for me not to
give as an additional reason for my order that the
Statute of Monopolies was not a part of the law in
the prairie provinces. In confirming my earlier
decision not to strike without prejudice, it is not
necessary for me to confirm my earlier finding
with regard to the Statute of Monopolies. I con
firm my earlier decision solely because I believe it
not to be inconsistent with the decision of Mr.
Justice Dubé in Burnaby v. Berglund and because
of the decision in Peck v. Hindes and Aca Joe.
ORDER
My earlier decision to strike the allegations with
regard to the Statute of Monopolies without provi
sion that I did so without prejudice is confirmed.
There are to be no costs of the attendance to make
submissions in this matter.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.