Majority
context. This is the case whenever we are dealing with broad and general definitions enumerative of a number of differing applications of the same word or words.
I would, therefore, answer the questions as follows:
AssocN. et al. Question No. 1:
Construing the question to be limited to the power C.P.R of banning the imposition by the railways of any C.N.R. et al. demurrage whatever, regardless of reasonableness or
Rand J. any other considerations, my answer is, No;
Question No. 2:
No.
I would, therefore, dismiss the appeal with costs.
Judgment of the Court
CARTWRIGHT J.:-This is an appeal brought, pursuant to leave granted by my brother Abbott from an order of Dumoulin J.' striking out paragraphs 4, 5, 6 and 7 of the statement of defence filed by the appellant.
The action is brought by the respondents, the registered owner and exclusive licensee respectively, for infringement of four Canadian patents. The appellant denies that it has infringed these patents and in addition contests their validity.
Paragraph 4 of the statement of defence is typical of those which were struck out. It reads as follows:
4. The Defendant states that said Letters Patent No. 399,972 discloses and claims the same invention as described and claimed in United States of America Letters Patent No. 2,202,778 dated May 28th, 1940, owned by the Plaintiff Lovell Manufacturing Company and that the said Plaintiffs are bound by the amendments, admissions, interpretations and statements made and submitted by the applicant for the said letters and by the agents for the applicant and for the Plaintiff Lovell Manufacturing Company in prosecuting the said applications for the said patents before the Canadian and the United States Patent Offices to obtain the allowance 1(1958), 29 C.P.R. 1.
The motion before Dumoulin J. was brought pursuant to Rule 114 of the Exchequer Court to strike out the paragraphs mentioned "as being impertinent and irrelevant and tending to prejudice, embarrass or delay the fair trial of this action". It does not appear that the paragraphs were objected to on the ground that the defendant was pleading evidence contrary to the opening sentence of Rule 88:
In his reasons for judgment Dumoulin J. states the question to be determined as being:
and goes on to hold that this question must be answered in the negative. Counsel for the appellant made it plain that he does not seek to rely on any decision of a foreign tribunal; his submission is that he should be permitted to adduce in evidence statements or admissions made by the plaintiff or its agents in the course of the proceedings in that country.
It developed during the course of the argument before us that neither counsel contended that the question of the admissibility of such statements or admissions should be decided on an interlocutory application; but counsel for the appellant was apprehensive that if the paragraphs in question were struck out the judge presiding at the trial might feel himself bound by the order of Dumoulin J. to S.C.R.