Master Garfield:— This is an application made on behalf of the defendants to strike out certain paragraphs of the statement of claim and parts of other paragraphs.
Re paragraphs 13 - 21. Counsel for the applicants argue that the paragraphs are prolix, irrelevant and embarrassing. The paragraphs refer to correspondence between the plaintiffs through their solicitors and some of the defendants, employees of Her Majesty the Queen concerning the plaintiffs’ wish to be shown copies of the authorization and approval purportedly issued under s. 231 of The Income Tax Act (Canada). The paragraphs further allege that the plaintiffs were not able to obtain from the defendants or from the Clerk of the County Court of Middlesex “the necessary authority to approve the search”. Paragraph 21 alleges that the defendant, R W Dal- geish admitted that the defendants did not have a copy of such authority to approve the search. See Brydon v Brydon, [1951] OWN 369 at 370-1:
“Nor are the rules of pleading in our Courts a thing of darkness and mystery, difficult to be grasped by the oridinary mind, and based upon arbitrary or whimsical principles. These principles are clear and simple and plain common sense. The pleadings must disclose what it to be tried; every pleader is at liberty to allege any fact which would be allowed to be proved, but only such facts.”
The test is not whether the fact is a major or a minor fact or a chief or an ancillary one, but rather whether the fact pleaded is relevant to the trial of the issue. As further stated by Riddell, J in the same case, citing Rock v Pursell (1887), 84 LT Jo 45:
“Anything which can have any effect at all in determining the rights of the parties can be proved, and consequently can be pleaded — but the Court will not allow any fact to be alleged which is wholly immaterial and can have no effect upon the result.”
See also Everdale Place v Rimmer et al (1975), 8 OR (2d) 641 at 643:
. . . However, when that pleading raises an issue, the determination of which can have no effect upon the outcome of the action, such pleading is embarrassing and should be struck out.
In the instance case, all those paragraphs raise issues that can and will affect the outcome of the trial. The facts set out in the paragraphs are provable and relevant so as to negate the argument of counsellor the applicants that the paragraphs are irrelevant and embarrassing.
Paragraphs 22 - 5. These paragraphs, do indeed, as submitted by counsel for the applicants refer to earlier proceedings and paragraph 24 specifically refers to a settlement between the parties and an admission by one of the defendants, I S MacGregor and therefore should not be considered as a proper pleading. But again, these are facts that provable and can be considered relevant to the issue of exemplary damages and accordingly should remain.
Paragraph 7. “without colour of right" is a legal conclusion but is supported by facts, particularly those set out in paragraph 16 as to the legality of the purported search and seizure.
Paragraphs 12 and 26. The use of “high handed” and “officious” described in these paragraphs are descriptive and are supported by the facts relating to the claim for punitive damages.
In the results, the application is dismissed and the applicants/defendants shall have fourteen days from the entry of the order to deliver their statements of defence. Costs shall be the plaintiffs in the cause.