Docket: T-2090-10
Citation: 2011 FC 1437
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Montréal, Quebec, December 7, 2011
PRESENT:
Richard Morneau, Prothonotary
BETWEEN:
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DORIS
TREMBLAY
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Plaintiff/
Defendant by
Counterclaim
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and
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ORIO CANADA
INC.
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Defendant/
Plaintiff by
Counterclaim
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REASONS FOR ORDER AND ORDER
[1]
UPON reading the motion records of
the parties and hearing their counsel on a motion by the plaintiff and
defendant by counterclaim (the plaintiff) for leave to amend his statement of
claim in accordance with the draft submitted and for a ruling on the
defendant’s objections to the production of certain financial and commercial
documents;
[2]
WHEREAS this motion is, more specifically,
part of an action for copyright infringement commenced by the plaintiff in
relation to control software for automobile dealerships, and whereas the
plaintiff states that he developed and improved this software (the modified
SAM) and considers himself the owner of the copyright;
[3]
WHEREAS it is appropriate to deal first
with the plaintiff’s motion to amend and to bear in mind that, in addition to
the minor amendments, the primary amendment the plaintiff seeks to add stems
from the fact that the examination for discovery of the defendant’s representative
revealed that the defendant permitted a third party, Groupe Enode inc., to make
a complete copy on a server of the source code at issue and that this
unauthorized copy was subsequently installed on servers belonging to the
defendant’s clients. The plaintiff now wishes to allege this situation so that the
issues between the parties are properly defined;
[4]
WHEREAS with respect to the
principles that apply to the amendment of pleadings, the following passage from
Canderel Ltd v Canada, [1994] 1 F.C. 3 (C.A.), at page 10, clearly
reflects the latitude that the Court must demonstrate in this matter:
. . .
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.
[5]
WHEREAS as a backdrop to these
observations, it may be added that in the case of an amendment, as in an
application to strike a proceeding, the amendment should be allowed unless it
is plain and obvious that the amendment is bound to fail (see Raymond
Cardinal et al. v Her Majesty the Queen, unreported decision of the appeal
division of this Court dated January 31, 1994, docket A‑294‑77,
Heald, Décary and Linden JJ.A.);
[6]
WHEREAS the Court cannot conclude at
this stage that the amendments sought are bound to fail, notwithstanding that
the defendant seems to consider that the plaintiff’s action is, from the outset,
an act of vindictiveness and bad faith;
[7]
THUS, in light of the preceding
reasons and the principles set out in Canderel and Cardinal above,
the Court intends to comply with the plaintiff’s request for amendments;
[8]
WHEREAS, with respect to the request
for a ruling on the objections, the remedy sought by the plaintiff consists, in
fact, in obtaining production of the following documents (the documents sought)
from the defendant:
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a list of the defendant’s current clients (fifth request);
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the invoices sent since June 2009 to the defendant’s clients (sixth request);
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a copy of the contracts signed since June 2009 between the defendant and
its clients (seventh request).
[9]
WHEREAS the Court regards the
production of these documents as relevant for the purposes of identifying
potential witnesses and calculating damages;
[10]
WHEREAS the defendant, in fact, does
not oppose the production of the documents as such but requests that these
documents be disclosed to counsel for the plaintiff only and not to the
plaintiff himself;
[11]
WHEREAS after reviewing the parties’
motion records, their counsel’s representations at the hearing, and the
principles set out by this Court in Merck
& Co. v Brantford Chemicals Inc. (2005) 43 C.P.R. (4th)
233 and Pharmascience Inc. v Glaxosmithkline Inc., 2007 FC 360
(Hughes J., April 3, 2007), the Court finds however that the
defendant has not established unusual circumstances within the meaning of Brantford
Chemicals and Pharmascience that would lead the Court to disregard
the fact that the plaintiff himself should also have access to the documents
sought;
[12]
WHEREAS the Court also finds that it
does not have the evidence that would support calling into question the honesty
and trust that the plaintiff and his counsel will comply with a confidentiality
order that includes them. Furthermore, both parties know very well that they
are bound by the implied undertaking rule with respect to the subsequent use of
information obtained in the course of litigation;
[13]
WHEREAS the Court believes that
these parties are not involved in parallel proceedings in foreign jurisdictions
and should not be viewed as competitors;
[14]
WHEREAS, as discussed in court, the
Court considers—as is the widespread practice—that counsel for the parties may
and shall agree on a draft protection order that does not leave out the
plaintiff himself and that the documents sought shall be produced within 20
days after such a draft order is signed, a draft protection order that shall be
jointly submitted to the Court on or before December 16, 2011;
ORDER
THE
COURT
1.
AUTHORIZES the plaintiff to amend
his statement of claim in accordance with the draft enclosed with his letter of
November 30, 2011, by serving and filing the amended statement of claim on
or before December 13, 2011;
2.
AUTHORIZES the parties
subsequently to amend their pleadings as a result, in accordance with the time
limits prescribed in the Federal Courts Rules;
3.
ORDERS that counsel for the parties
agree on a draft protection order that does not leave out the plaintiff and
that the documents sought be produced within 20 days after such a draft order
is signed, which draft order shall be jointly submitted to the Court on or
before December 16, 2011;
4.
PERMITS the plaintiff to
continue and to complete his examination of the defendant’s representative, François Gagné,
on the answers provided following his examination of July 5, 2011, and on
the questions that also arise reasonably from the documents sought to be
provided, on a date agreed to by counsel for the parties as long as the
continuation of the examination takes place on or before January 13, 2012.
Costs in the cause.
“Richard
Morneau”
Certified
true translation
Mary
Jo Egan, LLB
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