A-355-76
Eli Lilly and Company and Eli Lilly & Company
Canada Limited (Appellants)
v.
Marzone Chemicals Ltd. and The Gardeners Sales
Ltd. (Respondents)
Court of Appeal, Jackett C.J., Heald and Ryan
JJ.—Ottawa, December 9, 1976.
Procedure—Appeal from judgment dismissing motion to
strike out portions of defence and counterclaim Not appro
priate time to hear argument on point of constitutional law—
Alternative procedure available by way of question of law set
down for hearing before trial.
APPEAL from interlocutory judgment.
COUNSEL:
D. Watson, Q.C., and K. Plumley for
appellants.
R. T. Hughes for respondents.
J. J. Robinette, Q.C., and D. Rutherford for
Attorney General of Canada.
SOLICITORS:
Gowling & Henderson, Ottawa, for
appellants.
D. F. Sim, Q.C., Toronto, for respondents.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment of
the Court delivered orally in English by
JACKETT C.J.: Mr. Hughes, it is not necessary
to hear you.
We have not been persuaded that we should
interfere with the discretion exercised by the
learned Trial Judge when he dismissed the motion
to strike. We have, therefore, concluded that the
appeal should be dismissed with costs.
At the commencement of the hearing of this
appeal, after hearing counsel, it was decided not to
hear argument from the appellants as to the con
stitutionality of a statutory provision relied on by
the respondents. To avoid misunderstanding, we
deem it advisable to explain our reason for taking
that position.
In the first place, it is to be noted that this is not
an appeal from a final judgment where the appel
lants would, of course, ordinarily be entitled to
take new points of a legal nature not based on ndw
facts.
This is an appeal from a judgment dismissing an
application to strike out certain portions of a
defence and counterclaim. As indicated in a foot
note to Page v. Churchill Falls (Labrador) Corp.
Ltd.', a very helpful summation of the matter is to
be found in the Drummond-Jackson case in the
judgment of Lord Pearson at pages 695-96, which
reads in part as follows:
Over a long period of years it has been firmly established by
many authorities that the power to strike out a statement of
claim as disclosing no reasonable cause of action is a summary
power which should be exercised only in plain and obvious
cases .... Reference has been made to four recent cases:
Rondel v. Worsley [1969] 1 A.C. 191; Wiseman v. Borneman
[1969] 3 W.L.R. 706; Roy v. Prior [1970] 1 Q.B. 283; and
Schmidt v. Home Office [1969] 2 Ch. 149. In each of these
cases there was an important question of principle involved, and
the hearing of the application ... was much longer and more
elaborate than is usual, but the final decision was that the
alleged cause of action was clearly unsustainable, and so the
statement of claim disclosed no reasonable cause of action and
was ordered to be struck out. There was no departure from the
principle that the order for striking out should only be made if
it becomes plain and obvious that the claim or defence cannot
succeed, but the procedural method was unusual in that there
was a relatively long and elaborate instead of a short and
summary hearing. It must be within the discretion of the courts
to adopt this unusual procedural method in special cases where
it is seen to be advantageous. But I do not think that there has
been or should be any general change in the practice with
regard to applications under the rule.
The question that arose in this appeal is wheth
er, when the Court below had not been asked to
hear an elaborate argument upon an important
constitutional question upon an application to
strike out, this Court should, upon an appeal from
an order dismissing the application to strike, hear
argument upon such an important question.
' [1972] F.C. 1141 at page 1146.
Having regard to the fact that argument of such
a question upon an application to strike is an
exceptional procedure and to the fact that an
alternative procedure is still available, if advisable,
by way of a question of law set down for hearing
before trial, this Court came to the conclusion that
it should not hear argument, upon an appeal from
an order dismissing an application for an order to
strike, on a difficult question that had not been
argued before the Court of first instance.
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.