Date: 19991022
Docket: T-1391-98
BETWEEN:
CHIC OPTIC INC.,
CONTOUR OPTIK INC.
Plaintiffs
- and -
FUJI OPTICAL CO. LTD.,
EIGHTY-EIGHT OPTICAL LTD.,
ZELLERS VISION CENTRE, MR. TONI GEHA,
MR. GILLES BOURGEOIS, PICABO IMPORTATION INC.,
DENIS DUPONT, TRI-MINH HUYNH, THOMAS A. MARER OPTICIANS INC.,
doing business as MARERVISION, THE FRAME CLUB, DIETER SAXER,
STROZZI'S EYEWEAR AND GALLERY LTD., JOHN DOE, JANE DOE
and ALL OTHERS UNKNOWN TO PLAINTIFFS WHO ARE
INFRINGING ON THE PATENT DESCRIBED HEREIN
Defendants
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Plaintiffs seek to remove from the Court"s file the Affidavit of Henry Lehmann, sworn 30 May 1999 and filed by the Plaintiffs 22 July 1999, for they wish to obtain expert opinion upon a box of eye-glass frames filed with the Affidavit as an exhibit. The motion is not opposed, yet even on consent there must be justification for the removal of documents: see for example the unreported 16 August 1979 decision of Mr. Justice Cattanach in Attorney General of Canada v. Smith International Inc. , action T-1944-79. There the parties sought to remove affidavits and exhibits by consent. Removal was refused for there was no valid reason advanced to justify the removal of the documents.
[2] The Court has inherent control over its own records and may permit removal of particular material in which a party has a proprietary interest: see for example McCleery v. Commissioner of RCMP, [1974] 2 F.C. 361, at 362-363 and at 364-365:
| Generally speaking, apart from any statute or statutory rule affecting the matter, the Court itself is the master of its own records. It decides what records shall be made and kept pertaining to proceedings before it. The time honoured practice has been to maintain in the Court permanently all documents submitted to the Court in the course of proceedings save when, in response to the request of a party or persons having a proprietary interest in particular documents, the Court has made an order permitting their removal from the Court"s custody. [page 362-363] |
| ... it does not follow that the Court cannot authorize the permanent removal of a document in the exercise of its inherent control over its own records. In my opinion the Court has ample authority to do so and the substantial problem that arises on this application is simply to determine the relative weights of the reasons for retaining the documents here in question and those for returning them to the Commissioner. [page 364-365] |
[3] In the present instance there is no valid reason to remove the affidavit as a whole, for not only are the affidavit and exhibits now public documents, but also this litigation is ongoing against one of the Defendants. There is, however, justification for removal of the exhibit in question, but only on a temporary basis, with the exhibit to be returned immediately after the Plaintiffs" expert has examined the eye-glass frames.
ORDER:
| The Plaintiffs may have temporary custody of Exhibit A to the Affidavit of Henry Lehmann, sworn 30 May 1999. Should any remaining Defendants request access to the Exhibit while in the custody of the Plaintiffs, the Plaintiffs shall make reasonable accommodation. The Plaintiffs shall forthwith return Exhibit A to the Court at the conclusion of examination of the Exhibit by the Plaintiffs" expert, but in any event at least two clear days before any summary judgment application or other application to the Court to decide this action on its merits. |
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-1391-98 |
| STYLE OF CAUSE: CHIC OPTIC INC. |
v.
CONTOUR OPTIK INC.
MOTION DEALT WITH IN WRITING
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
WRITTEN SUBMISSIONS BY:
| Mr. Warren Milman for the Plaintiffs |
| Mr. Dieter Saxer for the Defendants |
SOLICITORS OF RECORD:
McCarthy Tetrault
| Vancouver, BC for the Plaintiffs |
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