Rivard Instruments Inc. v. Ideal Instruments Inc., 2007 FC 870

Date: 20070829

Docket: T-1113-04

Citation: 2007 FC 870

Ottawa, Ontario, August 29, 2007

PRESENT:     The Honourable Mr. Justice Hugessen

BETWEEN:

RIVARD INSTRUMENTS INC.

Plaintiff

and

IDEAL INSTRUMENTS INC.

Defendant

REASONS FOR ORDER

(Delivered from the Bench at Ottawa, Ontario,

on August 29, 2007)

[1]               I am going to dismiss this motion for summary judgment brought by the defendant.

[2]               In my view there is clearly a genuine issue for trial in this case.

[3]               The plaintiff holds a patent for a magnetically detectable cannula, apparently used in the meat packing industry, so as to detect broken hypodermic needles in meat which is being prepared for human consumption.

[4]               The relevant claim is for a cannula composed in part of ferritic stainless steel.

[5]               The defendant moving for summary judgment says that its cannula is made not of ferritic stainless steel but of duplex stainless steel.

[6]               The plaintiff’s expert witness says that duplex stainless steel, is itself a composition, one of whose components is ferritic stainless steel, and that that component or “phase” as he calls it, is separately detectable by microscopic analysis of the final product.

[7]               That opinion appears to be disagreed with by the defendant’s expert witness apparently basing himself on what he considers to be a definition of the words ferritic stainless steel in the disclosure.

[8]               Whether or not he is right in that pretention I do not think it appropriate for me to comment.  Equally I do not think it appropriate for me to comment on whether or not the plaintiff’s expert witness is correct.

[9]               Clearly the two experts conflict.  Both were cross-examined at some length.  Neither resiled from his opinion.  That seems to me is the classic circumstance in which the Court ought not to grant summary judgment and I would cite Trojan Technologies, Inc. v. Suntec Environment Inc. (2004) 31 C.P.R. (4^th) 241 (F.C.A.) as a sufficient authority for that proposition.

[10]           Accordingly the case must go to trial.

[11]           The motion for summary judgment will be dismissed with costs.

“James K. Hugessen”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1113-04

STYLE OF CAUSE:                          RIVARD INSTRUMENTS INC. v.

                                                            IDEAL INSTRUMENTS INC.

PLACE OF HEARING:                    Ottawa, Ontario

DATE OF HEARING:                      August 29, 2007

REASONS FOR ORDER:               HUGESSEN J.

DATED:                                             August 29, 2007

APPEARANCES:

SOLICITORS OF RECORD: