THE REPLY. Each Claimant may, within 15 Working Days after delivery of a Response, deliver to the relevant Respondent a reply specifically admitting or not admitting any of the claims and contentions in that Response (a "REPLY") and, subject to any such Reply, a Claimant will be deemed to have considered each of those claims and contentions.
THE REPLY. If the applicant disagrees with the Written Opinion, the applicant has a short time to reply by amending the application and/or making arguments (generally 2 months). If time permits, the examiner may issue a second Written Opinion, taking into consideration the applicant’s response.
THE REPLY. [24] The Claimant reiterated that the Letter of Xxxxx dated the 8th December 2000 constituted an agreement for a lease between the parties. Xxxxx’x Auto Rental denied that there was any uncertainty about the premises subject to the Agreement of the lease and asserted that the premises comprised 4046 square metres. [25] The Claimant also denied that the full amount of the rent was undetermined. It contended that the Defendant was responsible for fixing the service charge/additional rent and advising the Claimant of same; this they failed and/or neglected to do. [26] It was also denied that the terms of the Agreement were not settled; the Claimant pleaded that modification to the Agreement would not have materially affected its terms. [27] The Claimant averred that it paid rent to the Defendant for 10 years which the latter cannot now deny. If there was no tenancy then the monies received by the Defendant was mesne profits. [28] The Claimant also pleaded that the sum of US $7,282.80 comprised US $6,332.67 as rent and US $949.93 as VAT. Further, the Defendant never asked for more VAT over the period. [29] The Claimant averred that the NCL was the principal contractor under the Contract for the construction of the airport while Calmaquipp Caribbean Limited was a subcontractor. The latter occupied NCL’s site because of a failure on the Defendant’s part to provide a site for Calmaquipp Caribbean Limited. No rent was received by the Claimant from Calmaquipp Caribbean Limited for the use and occupation of NCL’s buildings. It was also denied that the Defendant only became aware of the Claimant’s occupation of the buildings in 2004. [30] The Claimant asserted that the issue of their occupation only arose with the change of government in 2001. [31] The Claimant pleaded further that the fact that said lands is in a restricted area does not preclude the Defendant from renting it; further, the legislation cited by the Defendant does not prohibit the lease of the land by the Defendant who must have taken into account the fact that the land was restricted before deciding to rent it. [32] In order to determine the issues that arise in this case, a careful review and analysis of all the evidence in this case is necessary. I have set out below a summary of the evidence adduced on behalf of the Claimant and the Defendant.
THE REPLY. [7] Following the filing of the respondents’ motion record, the appellants submitted a reply record. The reply record includes reply submissions and an affidavit of a law clerk with the appellants’ counsel. Because of the inclusion of an affidavit, the reply record was not filed by the Court’s registry. The registry seeks the direction of the Court as to whether the reply record should be accepted for filing. [8] The respondents argue that the reply record should not be filed because (i) affidavit evidence in reply may not be filed without leave of the Court, which was not sought, and (ii) the reply submissions are not proper reply because they simply reargue an issue that was already addressed in the initial motion record: whether claims 37 and 38 were among the claims asserted at trial. [9] With regard to the reply affidavit, the appellants point out, correctly, that it simply reproduces a number of documents that are already in the appeal book. The appellants assert that the reply affidavit is intended not to supplement the record, but rather for convenience of reference. The appellants conveniently provide a table indicating where each of the documents provided in the reply affidavit can be found in the appeal book. The appellants also request, to the extent it is necessary, leave to file the reply affidavit. With regard to the reply submissions, the appellants point out, correctly again, that they address the respondents’ unexpected position that claims 37 and 38 were actually among the claims asserted at trial. The appellants argue that these submissions are therefore proper reply. [10] Because all of the documents provided in the reply affidavit are already in the appeal book, it would appear that very little turns on whether it is filed. However, the reply affidavit is a useful reference, and I can think of no practical reason that the filing of this affidavit would be problematic. Taking into account the appellants’ request for leave to file the reply affidavit, and the decision of Xxxxxxx X.X. in Amgen Canada Inc. v. Apotex Inc., 2016 FCA 121, 266 A.C.W.S. (3d) 12, I would grant leave to file the reply affidavit. [11] I agree with the appellants that the reply submissions serve to confirm a point that seemed to be agreed before the respondents’ submissions on the present motion: that claims 37 and 38 were not among the asserted claims at trial. None of the respondents’ expert evidence at trial addressed claims 37 or 38, nor did their Closing Subm...
