Date: 19971209
Docket: T-2107-97
BETWEEN:
WRIGLEY CANADA INC.
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
RICHARD MORNEAU, ESQ., PROTHONOTARY
[1] This is a motion by the Defendant under Rule 419(1)(b) to (f) of the Federal Court Rules (the rules) for an order striking out paragraphs 5 to 21 of the Plaintiff's Statement of Claim on the ground that the allegations contained therein are entirely unrelated to the relief sought by the Plaintiff and, therefore, must be considered immaterial and embarrassing within the meaning of Rule 419.
[2] The relief sought by the Plaintiff is a declaration that "Extra Sugar Free Gum" is a food within the meaning of the Food and Drugs Act and Regulations, and that in respect of its manufacture of that product and irrespective of any claims made in relation to it, the Plaintiff is not required to comply with the legislative provisions relating to drugs under the Food and Drugs Act, R.S.C. 1985, c. F-27 (the Act).
[3] The impugned paragraphs contain details of various dealings that the Plaintiff has allegedly had with officials of the Department of Health and Welfare Canada and the Canadian Radio-Television and Telecommunications Commission with respect to the categorization of the Plaintiff's gum as a "food" or as a "drug" under the Act.
[4] The Defendant contends that whether the declaration sought by the Plaintiff ought to be granted is an issue that can and should be decided solely on the basis of the nature of the product and the interpretation of the legislation to be retained by the Court.
[5] Although the line of conduct suggested by the Defendant will be central in the determination to be arrived at by the Court, the impugned paragraphs bring the context against which the Plaintiff feels it needs ultimately the assistance of the Court through a declaration. I agree with the submission made by counsel for the Defendant that the Court might find it informative and useful to be able to grasp why and how the dispute between the parties arose in the first place.
[6] Therefore, my conclusion is that the impugned paragraphs cannot be considered so forlorn and futile that they should succumb to a motion to strike. (See Copperhead Brewing Co. v. John Labatt Ltd. (1995), 61 C.P.R. (3d) 317 (F.C.T.D.), at 322.)
[7] In addition, I am not satisfied based on the material on file as of this date that the Defendant will suffer any real prejudice if the impugned paragraphs are not struck (see also Copperhead, id., on this point).
[8] This motion will therefore be dismissed. Since neither party insisted on costs, none will be awarded on this motion.
Richard Morneau
Prothonotary
MONTREAL, QUEBEC
December 9, 1997
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-2107-97
WRIGLEY CANADA INC.
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING:Ottawa, Ontario
DATE OF HEARING:November 27, 1997
REASONS FOR ORDER OF:Richard Morneau, Esq., Prothonotary
DATED:December 9, 1997
APPEARANCES:
Mr. Gordon B. Greenwood for the Plaintiff
Mr. Frederick Woyiwada for the Defendant
SOLICITORS OF RECORD:
Mr. Gordon B. Greenwood for the Plaintiff
Maclaren Corlett
Ottawa, Ontario
Mr. George Thomson for the Defendant
Deputy Attorney General of Canada
Ottawa, Ontario