



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Wolseley 
          Canada Inc. v. Emco Corporation,







2008 
          BCCA 18



Date: 20080118

Docket: CA035519

Between:

Wolseley 
    Canada Inc.

Respondent

(
Plaintiff
)

And

Emco 
    Corporation, Gordon Wiltzen,

Paul 
    Wesley, Randy Flello, Hazel Duenas, and

Gordon 
    Carver

Appellants

(
Defendants
)




Before:


The 
          Honourable Madam Justice Prowse




(In 
          Chambers)








B. 
          Fraser

G. 
          Boswall


Counsel for the Appellants




F.E. 
          Verhoeven

E.L. 
          Bosma


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




January 11, 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 18, 2008



Reasons 
    for Judgment of the Honourable Madam Justice Prowse:

[1]

EMCO Corporation, Gordon Wiltzen, Paul Wesley, Randy Flello, Hazel 
    Duenas and Gordon Carver (the defendants) are applying for leave to appeal 
    from the order of a chambers judge, made September 25, 2007, dismissing their 
    application for particulars, made pursuant to Rule 19 of the
Rules of 
    Court
(the 
Rules
), B.C. Reg. 221/90,

and 
    allowing the application of Wolseley Canada Inc. (the plaintiff) to amend 
    its Statement of Claim.  The chambers judge granted the defendants leave to 
    renew their application for particulars upon completion of examinations for 
    discovery and discovery of documents.

[2]

By way of brief background, the plaintiff is a national distributor 
    of construction materials and has a division, called the Engineered Pipe Group, 
    which specializes in the sale of high density polyethylene pipe (HDPE) and 
    related services.  The plaintiff is a public company and is listed on both 
    the Toronto and New York Stock Exchanges.

[3]

The defendant, EMCO, has a division also specializing in the sale of 
    HDPE pipe and related services.  The plaintiff and EMCO are competitors with 
    respect to the sale of HDPE pipe and services.

[4]

Prior to November 3, 2005, the individual defendants were employed 
    by the plaintiff at its Langley, B.C. office.  Early in November 2005, they 
    resigned their employment and began working for EMCO at a new office which 
    EMCO had established in Port Coquitlam.

[5]

The plaintiff commenced its action against the defendants by way of 
    a Writ of Summons and Statement of Claim filed on March 10, 2006.  The plaintiff 
    alleges that the individual defendants breached employment contracts, obligations 
    of good faith and fidelity, confidence and fiduciary duties by disclosing 
    to EMCO confidential information belonging to the plaintiff.  Wolseley further 
    alleges that EMCO knowingly interfered with the contractual relations between 
    the plaintiff and the individual defendants and that the defendants used the 
    confidential Information to compete unfairly against the plaintiff.

[6]

On December 1, 2006, the defendants filed a Statement of Defence, followed 
    by a Notice of Motion on December 4, 2006 seeking particulars of the Statement 
    of Claim.  On June 22, 2007, the plaintiff applied to amend its Statement 
    of Claim to add further particulars.  The defendants opposed the proposed 
    amendments on the basis that, they too, were required to be particularized.

[7]

At para. 3 of his reasons, the chambers judge noted that the defendants 
    took the position that the Statement of Claim was expressed in such general 
    terms that it unfairly created too broad a scope for examinations for discovery 
    of the defendants with the result that any such examinations would be in the 
    nature of a fishing expedition.  After reviewing the statement of claim and 
    the further materials filed by the parties, the chambers judge rejected that 
    submission, and accepted that many of the particulars sought by the defendants 
    were peculiarly within their knowledge.  It is apparent that he also accepted 
    the plaintiffs submission that ordering further particularization of the 
    Statement of Claim at that point would unfairly prejudice the plaintiff by 
    unduly tying its hands in examinations for discovery.

[8]

In addressing the defendants application for particulars, the chambers 
    judge considered the authorities cited by both parties, which, in turn, included 
    references to many of the authorities which have been referred to by the parties 
    on this application.  He concluded that the Statement of Claim, including 
    the proposed amendments, was sufficient to enable the defendants to properly 
    plead and to conduct examinations for discovery.  He anticipated that the 
    defendants may wish to renew their applications for particulars following 
    discovery.

[9]

If granted leave to appeal, the defendants propose to argue that the 
    chambers judge erred in law, or exercised his discretion on wrong principles, 
    or without regard to the evidence, in refusing to order particulars.  They 
    suggest that there are two conflicting lines of authority with respect to 
    orders for particulars, represented by cases such as
Central Power Products 
    v. 238022 B.C. Ltd. et al.
, 2003 BCSC 1088, and
Order of the 
    Oblates of Mary Immaculate (British Columbia) v. Dohm, Jaffer & Jeraj
2007 BCSC 734 and authorities referred to therein, on the one hand, 
    and cases such as
Border Enterprises Ltd. v. Beazer East Inc.
2003 BCSC 49, and
Triathlon v. Kirkpatrick
, 2003 BCSC 1575, 
    on the other.  They also say that earlier communications from the plaintiff 
    to the defendants, and an earlier application by the plaintiff for injunctive 
    relief (subsequently abandoned), indicate that the plaintiff has a much better 
    idea of the nature and extent of the various breaches and losses it has alleged 
    against the defendants than reflected in the present pleadings and that it 
    should be required to provide that information in the form of particulars 
    prior to any further discovery process.  They further submit that this case 
    presents an opportunity for this Court to consider s. 19(11).1 of the
Rules
, 
    which provides for the delivery of further particulars after they become known.

[10]

The plaintiff submits that the proposed appeal is from a discretionary 
    order and, as such, is subject to a high level of deference from this Court 
    on review.  It says that the chambers judge had regard to the relevant law, 
    that he correctly found this to be a case where the pleadings were sufficient 
    to permit the defendants to plead and respond to discoveries, and that there 
    was no error in the manner in which he exercised his discretion.  The plaintiff 
    also submits that there is no real conflict in the law to be applied on an 
    application for particulars and that there is nothing in Rule 19(11).1 which 
    adds anything new to the law with respect to production of particulars.

[11]

The criteria which must be considered on an application for leave to 
    appeal are set out in many authorities, including
Power Consolidated 
    (China) Pulp Inc. v. B.C. Resources Investment Corp.
(1988), 19 C.P.C. 
    (3d) 396 (B.C.C.A.) and include:

(1) 
     whether the point on appeal is of significance to the practice;

(2) 
     whether the point is of significance to the action itself;

(3) 
     whether the appeal is
prima facie
meritorious, or, on the other hand, 
    whether it is frivolous; and

(4) 
     whether the appeal will unduly hinder the progress of the action.

[12]

I am not persuaded that the issue of particulars in this case raises 
    any point of general significance to the practice.  Without embarking on a 
    review of the authorities referred to by counsel, I am not persuaded that 
    there are two irreconcilable lines of authority concerning particulars which 
    require clarification from this Court.  Rather, the authorities referred to 
    discuss general principles of law, followed by an application of the law to 
    the particular facts of each case.

[13]

Nor am I persuaded by the defendants suggestion that there is a need 
    for this Court to pronounce on the significance of Rule 19(11).1 of the
Rules
, 
    which both counsel appear to agree simply represents a clarification of existing 
    law.

[14]

I accept that the issue on appeal is of significance to the parties.  
    This point is not seriously in dispute.

[15]

I am of the view, however, that the merits test has not been met on 
    these facts.  I have reviewed the pleadings and the other materials filed 
    in this matter.  I am unable to see any merit to the suggestion that the chambers 
    judge failed to consider relevant authorities, that he overlooked relevant 
    evidence, or that he erroneously applied the authorities to the facts.  I 
    understand that all of the arguments which counsel canvassed before me at 
    some length were canvassed at greater length before the chambers judge.  Given 
    the stringent standard of review applicable to discretionary orders of the 
    court made on an interlocutory basis, I see no prospect that a division of 
    this Court would interfere with this order on appeal.

[16]

I am also concerned that granting leave to appeal would interfere with 
    the orderly preparation of this matter for trial.  There have already been 
    considerable delays in getting this matter on track.  The nature of the action 
    is such that it would be in all parties interests to have it resolved as 
    soon as possible.  The trial has been set for 25 days to commence September 
    22, 2008.  A case management judge has been appointed and has set a schedule 
    to ensure that the action is ready to proceed at that time.  This schedule 
    includes the completion of examinations for discovery by March 31, 2008.  
    It is apparent that discoveries will be extensive and may well call for further 
    particulars and further discoveries thereafter.  It is also conceivable that, 
    as discoveries progress, the case management judge may be persuaded that further 
    particulars are necessary.  In the meantime, I am satisfied that an appeal 
    would operate to delay the orderly preparation of this action for trial and 
    could well result in an adjournment of the trial.

[17]

In the result, I am not persuaded that this is an appropriate case 
    in which to grant leave to appeal and I would dismiss the application for 
    leave.

The Honourable Madam Justice Prowse


