Bauer Nike Hockey Inc. v. Easton Sports Canada Inc., 2006 FC 1084

 

 

Date: 20060911

Docket: T-237-02

Citation: 2006 FC 1084

BETWEEN:

BAUER NIKE HOCKEY INC.

Plaintiff/

Defendant by Counterclaim

 

and

 

EASTON SPORTS CANADA INC.

Defendant/

Plaintiff by Counterclaim

 

 

 

REASONS FOR ORDER

MORNEAU P.

 

[1]               On July 21, 2005 this Court issued a decision in connection essentially with motions brought by each party in this patent infringement case following the second round of discovery.

[2]               In January of 2006, a third round of discovery was held. In addition, the Defendant and Plaintiff by Counterclaim (Easton) proceeded at the same time with the examination of a Mr. Chenevert, the inventor of the patent in suit. Mr. Chenevert was examined though under rule 237(4) of the Federal Courts Rules (the Rules). As an inevitable result of said further discovery, the Court has now before it two motions, to wit one motion by each party to adjudicate on objections raised during the third round of discovery of the parties’ representatives. In the case of the Plaintiff and Defendant by Counterclaim (Bauer), its motion also seeks various other relief.

 

Background

[3]               As indicated in my decision of July 21, 2005, Bauer’s action concerns Canadian Letters Patent No. 2 302 953 (the ‘953 patent) relating to a one-piece quarter for a skate boot and a skate boot comprising such a quarter.

[4]               Bauer alleges in its current pleadings that Easton has infringed claims 1, 2, 4, 5, 6 and 7 of the ‘953 patent by the manufacture and sale of different models of skate boots in Canada.

[5]               Easton has denied that any claims of the patent in suit have been infringed, and has filed a counterclaim alleging that the ‘953 patent is invalid on a number of grounds, including obviousness, lack of inventiveness, prior public disclosure, lack of utility and misleading statements in the background section of the alleged invention made, according to Easton, to attempt to characterize the uninventive structure of the skate as inventive.

[6]               Central to this case are claims 1 and 7 of the ‘953 patent.

[7]               Claim 1 provides as follows:

1.         A skate boot comprising a sole, a front portion for enclosing a wearer’s toes, a rear portion for enclosing a wearer’s heel and ankle, and a medial and lateral portion for enclosing the sides of a wearer’s foot, said rear portion and said medial and lateral portions comprising:

-           a quarter medial portion and a quarter lateral portion integrally connected together in a one piece construction and being folded at a symmetry line to form a U-shaped skate boot structure, each said quarter portions extending upwardly along said symmetry line defining a heel and ankle portion of said skate boot structure and extending outwardly from said symmetry line in a narrowing profile for defining both sides of said skate boot structure; and

-           a tendon guard secured to said quarter medial portion and quarter lateral portion at a junction line in a side-by-side fashion thereby resulting in said rear portion of said skate boot having an angular profile defined by said tendon guard and said quarter medial and lateral portions at said junction line.

[8]               Claim 7 provides as follows:

7.         A method of fabricating a skate boot comprising the steps of:

            -           cutting a one-piece element comprising a quarter medial portion, a quarter lateral portion, a medial foxing portion and a lateral foxing portion, said quarter medial portion and said quarter lateral portion, together defining an upper edge of said one-piece element;

            -           cutting a tendon guard having a lower edge;

            -           folding said one-piece element at a symmetry line to form a U-shaped structure;

            -           sewing said lower edge of said tendon guard to said upper edge of said one-piece element end to end to form a butt point at a junction line, such that said tendon guard defines an obtuse angle with said one-piece element;

            -           sewing together said medial foxing portion and lateral foxing portion to form a curved heel profile.

(My emphasis.)

[9]               I shall deal first with Bauer’s motion, then with Easton’s.

 

I.          Bauer's Motion

 

[10]           By its motion, Bauer seeks the following six (6) remedies:

            1.         An order granting it leave to serve and file a further amended statement of claim, in terms of the pleading attached as Schedule “A” to its notice of motion;

            2.         An order granting it leave to examine Mr. Marc Gagnon, the former President of Rock Forest Footwear Inc., one of the manufacturers of the Defendant’s skates in issue in this action;

            3.         An order providing Bauer with leave to examine an alternate witness, if necessary, in the event that Marc Gagnon identifies a more appropriate witness at his examination;

            4.         An order providing for the protection and maintenance of confidentiality of certain documents, information and transcripts to be produced by the parties during the course of this proceeding, in terms of the draft confidentiality order attached as Schedule “C” to its notice of motion;

            5.         An order requiring Mr. Ned Goldsmith, the representative of Easton, to:

                        (a)        provide answers to the outstanding questions which were ordered answered by the Court on July 21, 2005;

                        (b)        provide answers to the outstanding questions from his examination for discovery on January 20, 2006; and

                        (c)        re-attend a further examination for discovery at Smart & Biggar’s office in Montréal at his own expense to answer all proper follow-up questions regarding the answers provided in respect of (a) and (b) above;

            6.         Its costs of the motion, and its costs of the examination for discovery on January 20, 2006 and the examination for discovery referred to in paragraph 5(c) above, on a solicitor and client basis, to be payable forthwith.

[11]           I shall deal with the remedies sought by Bauer in the order in which they are introduced above.

 

            1.         Leave to serve and file a further amended statement of claim

 

[12]           As alluded to in my July 21, 2005 decision, in terms of the rules applicable to amending pleadings, the following passage from Canderel Ltée v. Canada, [1994] 1 F.C. 3 (C.A.), at 10, clearly reflects the liberalism which the Court must exercise in such matters:

[. . .] while it is impossible to enumerate all the factors that a judge must take into consideration in determining whether it is just, in a given case, to authorize an amendment, the general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice.

[13]           The Plaintiff’s requested amendments relate to the following:

            (a)        the assignment of the ‘953 patent from the Plaintiff to NIKE International Limited (Nike International);

            (b)        the change of name of the Plaintiff to NIKE Bauer Hockey Inc. and the addition of Nike International as a Plaintiff;

            (c)        the addition of two additional models of the Defendant’s skates that are alleged to infringe the ‘953 patent, namely the Typhoon and Synergy; and

            (d)        an allegation that the Defendant has induced and procured its manufacturers Rock Forest Footwear Inc. (Rock Forest) and Sakurai Sports also known as Try On Industries (Sakurai) to infringe the ‘953 patent.

[14]           Bauer’s proposed amendments (a) and (b) are based on the alleged facts, which appear undisputed, that by an assignment effective October 31, 2002, Bauer assigned the ‘953 patent to the proposed plaintiff Nike International. Bauer would be the exclusive licensee of Nike International under the patent since November 1, 2002. Bauer would be a person claiming under the current patentee Nike International.

[15]           Although, as pointed out by Easton, the assignment took place some years ago, and Bauer’s representative has not been questioned on it during the previous rounds of discovery, I am not satisfied, as claimed by Easton, that the allowance of said late amendments would occasion significant and unjustifiable delays. I am more inclined to believe that the amendments sought would serve the interests of justice in clarifying who the real stakeholders are with respect to the patent in suit. Therefore said amendments will be allowed.

[16]           At the re-attendance of Bauer’s representative for a fourth, and in all likelihood, final round of discovery, Easton shall be allowed to ask relevant questions in relation to said assignment and any further amendment allowed herein.

[17]           As to Bauer’s proposed amendment (c), since Easton does not oppose, per se, the amendment due to my order of July 21, 2005 where a similar amendment was allowed, proposed amendment (c) shall also be allowed.

[18]           As to proposed amendment (d), Bauer seeks by it to allege that Easton has induced and procured its manufacturers Rock Forest and Sakurai to infringe the ‘953 patent.

[19]           In Dableh v. Ontario Hydro (1996), 68 C.P.R. (3d) 129, at 148-149, the Federal Court of Appeal has reminded that the test with respect to induced infringement entails:

            (a)        the act of infringement must be completed by the direct infringer;

            (b)        completion of the act of infringement must be influenced by the acts of the inducer; without said influence, infringement would not otherwise take place; and

            (c)        the inducer knows that his influence will result in the completion of the act of infringement.

[20]           It would seriously appear that it is through previous rounds of discovery that Bauer has gathered or extracted relevant information under each head of the Dableh test which brings it now to sustain that Easton has induced Rock Forest and Sakurai to infringe. Since Easton denies that any infringing activity has ever taken place, proposed amendment (d) must be seen as relating to a serious issue between the parties.

[21]           Even if one was to accept Easton’s position that Bauer has learned all essential elements of information as early as during the first discovery round of August 2003 and not through clarifications obtained progressively over the years, this lateness on the part of Bauer to react could not be used to deny the proposed amendment since Easton has not evidenced nor otherwise established its allegation that the amendment would really occasion significant, unjustifiable delays or would clearly prejudice the fair trial of the action herein.

[22]           In addition, it is not clear and obvious at this juncture that, based on a limitation period argument, the Court could limit proposed amendment (d) to Easton skate models manufactured and/or sold after May 31, 2000. In addition, Easton’s counsel misread the decision of this Court of July 21, 2005 when he sustained that the Court therein clearly established that all Easton’s models manufactured or sold in and after 2004 cannot possibly infringe.

[23]           Finally, I cannot agree with Easton that the additional cause of action of infringement by inducement would add nothing to the direct infringement accusation put against Easton since it could place an additional burden on Easton’s shoulder if and when comes the reference on damages.

[24]           Therefore, at the end of the day, I do not consider that it would be unjust to allow proposed amendment (d). Almost to the contrary, this issue merits to be tried in the interests of justice.

[25]           Proposed amendment (d) shall therefore be allowed.

[26]           Consequently, by an order accompanying these reasons, Bauer shall be granted leave to serve and file a further amended statement of claim in terms of the further amended statement of claim attached as Schedule “A” to its notice of motion, save for the inclusion of HK Sports.

[27]           The Defendant Easton shall be granted leave in consequence to serve and file a further amended statement of defence and counterclaim, and to discover Bauer with respect to amendments brought to Bauer’s claim.

            2.         Leave to examine Mr. Marc Gagnon, the former president of Rock Forest

 

[28]           The fundamental test to be met by a party for an order to examine a non-party person is prescribed by rule 238. This rule reads:

[29]           Mr. Gagnon is the former president of Rock Forest. He was identified at the previous examinations for discovery as one of Easton’s main contacts at Rock Forest in relation to the skates in issue.

[30]           I am satisfied based on the motion records of the parties that Mr. Gagnon might very well have information relevant to a number of issues between the parties in this action including information as to why and at whose suggestion the skates manufactured by Rock Forest allegedly had a one-piece quarter as opposed to a two-piece quarter.

[31]           I am also satisfied, based on Bauer’s motion record, that Bauer has been unable in the past to obtain the relevant information it sought informally from Mr. Gagnon or from any other source including the Defendant Easton by any other reasonable means. In this case, I agree with Bauer that Mr. Gagnon is admirably situated to have information relevant to the issues in this action, even more so now that Bauer is allowed to plead that Rock Forest was material in assisting Easton to commit induced infringement.

[32]           Bauer’s motion record brings me also to conclude that it has also met the requirements of subparagraphs 238(3)(c) and (d) of the rules.

[33]           Finally, I do not agree with Easton’s position that rule 238 cannot be relied on to examine a person where said person is to be interrogated not in his individual personal capacity strictly but, as here, as a corporation’s representative.

[34]           To bolster its position, Easton referred the Court to the decision of my late colleague Hargrave in Bayside Towing Ltd. v. C.P.R. (2000), 187 F.T.R. 247, affirmed 194 F.T.R. 158 (hereinafter Bayside). However, even if in Bayside the peculiar request by the Defendant therein to examine a local tug boat operator under rule 238 brought my colleague to discuss at one point whether rule 238 should receive a similar interpretation as rule 28 of British Columbia which appears to have been interpreted as not allowing the examination of a person in her capacity of corporative representative, I do not read Bayside as conclusive authority that rule 238 should receive a similar restriction. In other words, I do not read Bayside as preventing a rule 238 examination of Mr. Gagnon as former president of Rock Forest.

[35]           Consequently, Bauer shall be granted leave to examine Mr. Gagnon, the former president of Rock Forest. It is interesting to note that although personally served with Bauer’s motion under subsection 238(2) of the rules, Mr. Gagnon, who is now apparently represented by counsel, did not appear on the motion to argue against Bauer’s request.

            3.         Leave to examine an alternate witness

 

[36]           By this request, Bauer seeks leave from this Court to examine an alternate witness, if necessary, in the event that Mr. Gagnon identifies a more appropriate witness at his examination.

[37]           I intend to deny Bauer such remedy since I consider that it is premature, and to proceed otherwise would be to grant Bauer a certain blanket authorization where under rule 238 for each specific person, whether identified by Mr. Gagnon or otherwise, the step-by-step approach of subsection 238(3) must be satisfied.

            4.         The issuance of a confidentiality order in terms of the draft confidentiality order attached as Schedule “C” to Bauer’s notice of motion

 

[38]           Said Schedule “C” provides for a “counsel’s eye only” order. Although Bauer in the recent past thought it had or was close to get the agreement of Easton for the issuance of such an order, and therefore did not expect, in putting up its motion record, that Easton would challenge such remedy, it appears it is now clearly the case.

[39]           In order to resolve this impasse, I intend to deny Bauer’s request for a confidentiality order but with leave to reapply with a proper motion record in that regard. This, Easton must realize, is not instrumental in moving the case forward and could cause additional delay regardless of whether Bauer gets or not the confidentiality order it is seeking.

 

              5.        An order requiring Mr. Ned Goldsmith, the representative of Easton, to:

 

                        (a)        provide answers to the outstanding questions which were ordered answered by the Court on July 21, 2005;

                        (b)        provide answers to the outstanding questions from his examination for discovery on January 20, 2006; and

                        (c)        re-attend a further examination for discovery at Smart & Biggar’s office in Montréal at his own expense to answer all proper follow-up questions regarding the answers provided in respect of (a) and (b) above;

 

 

                        5(a)      Schedule “A” questions

 

[40]           The outstanding questions which were ordered to be answered by the Court on July 21, 2005 have been listed by each party as a schedule “A” to their respective written representations.

[41]           As discussed at the hearing, in order to satisfy this part of the motion, Easton shall futher answer question (vi) found at paragraph 30 of Bauer’s written representations on this motion.

[42]           As to the outstanding questions from the examination of Easton’s representative on January 20, 2006, the parties have listed in their schedule “B” the questions for which the response provided is seen by Bauer as incomplete or non responsive and, in their schedule “C” the questions for which no response, according to Bauer, has been provided.

 

                        5(b)      Schedule “B” questions

 

[43]           In this category, I am satisfied that Questions R-151(a) and (b) have now been satisfactorily answered. No further answer is required.

[44]           As for Question R-152, it has been answered only partially. Easton shall in addition provide the name of the supplier of the Texcore material and the supplier’s description and specifications.

[45]           Question R-153 has now been sufficiently answered. As for Question R-175, Easton shall comply with its commitment when possible.

[46]           Question R-177 (or perhaps R-178) deals partially with Easton’s estimated market share in 2005. This information is relevant to Bauer’s allegation of commercial success in this action. As recognized by Bauer at the hearing, it has now been satisfactorily answered. No further answer is required.

 

                        5(b)      Schedule “C” questions

 

[47]           “Unanswered question (page 51, lines 5-17)” has now been answered to the best of Easton’s ability. No further answer is required.

[48]           As for Question R-176, it shall be answered as phrased - minus its first three words – since it is relevant to Bauer’s allegation of commercial success, more particularly with Bauer’s assertion that Easton skates that embodied the invention disclosed by the ‘953 patent met commercial success upon their introduction on the market. I do not see this question, therefore, as a fishing expedition and Bauer in its approach needs some leeway as to the extent of the information it requires to demonstrate commercial success.

[49]           In order to fully protect Easton’s answer to this question pending the outcome of Bauer’s confidentiality motion, Easton shall convey its answer to Bauer’s counsel under confidential seal and for his eyes only.

 

                        5(c)      Re-attendance for further examination

 

[50]           Consequently, the representative of Easton will be ordered to answer the questions herein ordered to be answered and shall re-attend at a further examination for discovery at Smart & Biggar’s offices in Montréal, and at his own expense, to answer all proper follow-up questions arising from the questions ordered to be answered.

[51]           As to the different costs headings claimed by Bauer in its notice of motion and eleborated upon in paragraphs 84 to 87 of its written representations and at the hearing, I am satisfied that the whole situation is adequately addressed by granting Bauer its costs on this motion under Column III of Tariff B. The other costs remedies are dismissed.

[52]           I shall now turn to Easton’s motion.

 

II.        Easton's Motion

 

[53]           By its motion, Easton requires this Court to order Bauer to answer questions allegedly improperly refused, on the one hand, at the third round of discoveries of Mr. Ken Covo, Bauer’s representative (the Covo questions, Schedule “A” to Easton’s motion), and, on the other hand, at the examination of the inventor of the ‘953 patent, Mr. Chenevert (the Chenevert questions, Schedule “B” to Easton’s motion).

[54]           At the outset, and although this Court is puzzled as to why Easton has not accompanied its motion with an affidavit, the Court will not follow Bauer’s suggestion to dismiss altogether Easton’s motion on that basis. This approach would reflect too drastic a measure. In addition, this Court is not at all convinced that such a lack of affidavit has in the circumstances of this case really prejudiced or hindered Bauer’s ability to respond to Easton’s motion.

[55]           As to the law on questions on discovery, in addition to what the Court said in its July 20, 2005 decision, it is appropriate here to remember at this juncture that Mr. Justice Hugessen, in Eli Lilly and Co. v. Apotex Inc. (2000), 8 C.P.R. (4th) 413 (upheld on appeal, at 12 C.P.R. (4th) 127), stated the following at pages 414-15 concerning the relevance of the inventors’ knowledge about the obviousness of an invention:

I am not prepared to order the plaintiffs to produce documents relating to the state of knowledge of prior art on the part of the inventors or of the patentees at the time of the issue of the patents in suit. Such knowledge can only be relevant to the pleaded issue of obviousness. The test for obviousness is, in my view, and there is ample authority to this effect, an objective test. The touchstone is the person skilled in the art, whether or not the invention would have been obvious to that person. The actual knowledge of the inventor or inventors is irrelevant.

(Emphasis added.)

            (See also the decision of the Supreme Court of Canada in Free World Trust v. Electro Santé Inc., [2000] 2 S.C.R. 1024, at page 1061.)

[56]           In addition, a party may not be required, on an examination for discovery, to answer a question that forces it to express an opinion, whether it is an expert opinion, its interpretation of a patent or its beliefs. In Philips Export B.V. v. Windmere Consumer Products Inc. (1986), 8 C.P.R. (3d) 505, it is stated, at page 508:

Question 467, which must be read with Q. 466, asks for the belief of the plaintiff. In both the Smith, Kline & French case and in Sperry Corp. v. John Deere Ltd. and al. (1984), 82 C.P.R. (2d) 1, it is stated that opinion cannot be asked, as a rule, of a person being examined who is not an expert and that a party cannot be asked to express its position in terms of mental attitudes.

(Emphasis added.)

            (See also Rivtow Straits Ltd. c. B.C. Marine Shipbuilders Ltd., [1977] 1 F.C. 735, at page 736.)

[57]           As a preliminary remark concerning these two categories, the Court will not adjudicate on questions which are not in issue anymore under this motion because, inter alia, Bauer has undertaken to answer, the question has been withdrawn or both parties agreed that a question has been sufficiently answered.

[58]           That having been established, we can now turn our attention first to the Covo questions. Then, we shall address the Chenevert questions. Given that the parties have not followed the same categorization in dealing with the Covo and Chenevert questions, I have elected to follow Bauer’s categorization in that regard.

 

            A.        The Covo Questions

 

[59]           The Covo questions are distributed into the following five (5) categories:

            1.         Questions alleged to be relevant to validity

                        (i)         Profile/angle

                        (ii)        Obtuse angle

                        (iii)       Tendon guard

            2.         Question alleged to be relevant to validity/misleading statements

            3.         Questions alleged to be relevant to invalidity/prior disclosure

            4.         Questions alleged to be relevant to validity/commercial success

            5.         Question alleged to be relevant to validity/existence of documents

 

            Subcategory 1(i)

 

[60]           Question 7 in my appreciation has been fully answered including whether the press gives form to the skate boot upper. No further answer is required.

[61]           Question 32 has been answered as phrased. It need not be answered further. However, question 30 as found at page 27 of Easton’s written representations shall be answered since it is in the same category of questions.

[62]           Question 37 as framed calls for the representative to speculate and provide an opinion. It need not be answered.

[63]           Questions 49 and 50 call for Bauer to essentially perform an exercise in the nature of an experiment using its back part moulder. It is irrelevant and improper a demand. The question need not be answered.

[64]           As for questions 337-338, Bauer shall further answer the questions put by Easton at paragraph 30 of its written representations.

 

            Subcategory 1(ii)

 

[65]           Question 123 under this category shall be answered by Bauer. By this exercise, I do not consider that Bauer falls directly or indirectly into the interpretation per se of a term of the patent.

 

            Subcategory 1(iii)

 

[66]           None of the questions are allowed based on the written representations submitted in response by Bauer.

 

            Category 2

 

[67]           This category need not be addressed here as Bauer undertook to answer.

 

            Category 3

 

[68]           Question 80 has been satisfactorily answered. No need to answer further.

 

            Category 4

 

[69]           Bauer has acknowledged that it shall answer Questions 266, 268, 273, 286, 288, 294, 295, 296, 368, 403, 415 to 417 should the Court order, at Bauer’s request, an answer to Question 176 (see supra, paragraph 48). Since the Court did order said Question 176 to be answered, the questions listed herein shall be answered.

[70]           As done for Easton’s answer, Bauer shall convey its answers to Easton’s counsel under confidential seal and for his eyes only. Questions 421 and 422 shall be answered following the same process.

[71]           Other outstanding questions under this category need not be answered based on the written representations submitted in response by Bauer.

 

            Category 5

 

[72]           Question 141 in this category shall be answered.

[73]           Consequently, the representative of Bauer will be ordered to answer the questions ordered herein to be answered and shall re-attend at a further examination for discovery, at his own expense, to answer all proper follow-up questions arising from the questions ordered to be answered.

 

            B.        The Chenevert Questions

 

[74]           As alluded to earlier, Mr. Chenevert is the named inventor of the patent in suit and he did assign said patent to the present plaintiff. He was examined pursuant to rule 237(4) as the assignor of the patent. As held by the Federal Court of Appeal in Richter Gedeon Vegyészeti Gyar Rt v. Merck & Co. (1995), 62 C.P.R. (3d) 137, at 143-144, the purpose of examination of an assignor is to enable the examining party to obtain facts (not opinions or speculations) that are relevant to issues in an action.

[75]           The Chenevert questions can be divided, as done by Bauer, into the following two categories:

            1.         Questions alleged to relate to the construction of prior art, skates/inventiveness of the patent in suit; and

            2.         Questions alleged to be related to misleading statements/inventiveness.

 

                        Category 1

 

[76]           As for all questions identified by Bauer at paragraph 67 of its written representations, I agree with this party that, as elaborated at said paragraph 67 (see also paragraphs 69 and 70), said questions are questions which call for Mr. Chenevert’s interpretation of various terms of the patent in suit or require his opinion as to whether elements of said patent are found in the patents or products alleged by Easton to be prior art. These issues are to be addressed by expert witnesses at trial. Therefore these questions need not be answered.

[77]           Question 66 shall be answered since it goes to in-line skates prior art on which Easton intends to rely.

 

                        Category 2

 

[78]           The outstanding questions under this category require Mr. Chenevert, much like under category 1, to speculate regarding a hypothetical situation and to provide his opinion as to the possible result. Therefore, for the reasons provided by Bauer at paragraphs 73 to 77 of its written representations, they do not need to be answered.

[79]           In consequence, Mr. Chenevert’s examination has come to an end and there is no need to order him to answer any outstanding questions or to order his re-attendance.

[80]           As to costs, the remedies sought by Easton are denied and costs on this motion are granted to Bauer under Column III of the Tariff since Bauer is more than largely successful on this motion.

                                                                                                            “Richard Morneau”

 

Montréal, Quebec

September 11, 2006

 

 

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-237-02

 

STYLE OF CAUSE:                          BAUER NIKE HOCKEY INC.

 

                                                            and

 

                                                            EASTON SPORTS CANADA INC.

 

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      July 31, 2006

 

REASONS FOR ORDER:               MORNEAU P.

 

DATED:                                             September 11, 2006

 

 

 

APPEARANCES:

 

François Guay	FOR THE PLAINTIFF/ DEFENDANT BY COUNTERCLAIM
Gordon J. Zimmerman	FOR THE DEFENDANT/ PLAINTIFF BY COUNTERCLAIM

 

 

SOLICITORS OF RECORD:

 

Smart & Biggar Ottawa, Ontario	FOR THE PLAINTIFF/ DEFENDANT BY COUNTERCLAIM
Borden Ladner Gervais Toronto, Ontario	FOR THE DEFENDANT/ PLAINTIFF BY COUNTERCLAIM