Date: 20100917
Docket: A-220-10
Citation: 2010 FCA 232
Present: STRATAS
J.A.
BETWEEN:
DYWIDAG SYSTEMS INTERNATIONAL,
CANADA, LTD.
Appellant
and
GARFORD PTY LTD.
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
In this
Court, the appellant, Dywidag Systems International, Canada, Ltd., appeals an
interlocutory order made by Justice Zinn of the Federal Court: 2010 FC 581.
[2]
Dywidag
has brought a motion for a stay or suspension of Justice Zinn’s order until
this Court determines the appeal.
A. Procedural history and
submissions on the motion
[3]
Justice
Zinn’s order arises within an action brought by the respondent, Garford Pty
Ltd., against Dywidag and others in the Federal Court. In this action, Garford
seeks compensatory damages and an accounting of profits arising from patent
infringement and breach of the Competition Act, R.S.C. 1985, c. C-34.
[4]
In actions
such as this, two broad issues need to be decided: whether the defendants are
liable and, if so, what remedies should be granted.
[5]
Dywidag,
one of the defendants in the action, brought a motion seeking an order to have
the liability issues determined first, and the remedial issues determined
later, if it becomes necessary to do so.
[6]
Prothonotary
Milczynski granted that order. As a result of the order, the parties were
excused from producing documents, conducting discoveries or proceeding to trial
on the remedial issues. Production, discovery and trial were to proceed first
on the liability issues.
[7]
Garford
appealed the order of Prothonotary Milczynski. Justice Zinn allowed the appeal
and set aside the order of Prothonotary Milczynski. As a result, the liability
and remedial issues are to be dealt with together, as is usually the case in
actions, not separately.
[8]
The
practical effect of this, among other things, is that Dywidag will now have to
produce documents and disclose information on all issues, including the
remedial issues, to Garford. One might speculate that the documents and
information are financial in nature, but there is no evidence to that effect.
[9]
Dywidag
appeals to this Court. In its notice of appeal, it alleges that Justice Zinn
erred and asks this Court to restore the order of Prothonotary Milczynski. It
seeks a stay or suspension of Justice Zinn’s order until this Court determines
the appeal. It submits that if Justice Zinn’s order is carried out,
confidential documents and information will be disclosed to Garford and, as a
result, the appeal to this Court will be academic.
B. Analysis
[10]
The
parties are agreed that in order to succeed in its request for a suspension or
stay of Justice Zinn’s order, Dywidag must satisfy all three requirements set
out in the Supreme Court’s decision of RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311. Dywidag must show that there is an
arguable case or serious issue on the appeal, it will suffer irreparable harm
if the order is not stayed, and the balance of convenience favours the granting
of the relief sought.
[11]
For the
purposes of determining this motion, it is only necessary to address the second
of these requirements, whether Dywidag will suffer irreparable harm. Dywidag
has not met this requirement, and so its motion for a stay or suspension of
Justice Zinn’s order will be dismissed.
[12]
In its submissions
on the motion, Dywidag asserts that it will suffer irreparable harm for two
reasons. First, the documents and information are confidential and once they
are produced, the confidentiality is lost and cannot be retrieved. Second, if
the documents are produced and the information is disclosed, the appeal in this
Court of Justice Zinn’s order will be moot or academic.
- I -
[13]
In support
of its motion, Dywidag offered an affidavit of roughly one page in length. The
affidavit does nothing more than append, without comment, the notices of
motion, orders and reasons for order in this matter. There is not a single word
devoted to the subject of irreparable harm.
[14]
To
establish irreparable harm, the moving party should file evidence at a
convincing level of particularity that demonstrates a strong likelihood that unavoidable
irreparable harm will result unless a stay is granted. Assumptions and assertions,
unsupported by evidence, carry no weight.
[15]
In the
words of Justice Desjardins in Haché v. Canada, 2006 FCA 424 at
paragraph 11, irreparable harm “must be established by clear and compelling
evidence” and “[m]ere assertions do not suffice.” See also Bathurst Machine
Shop Ltd. v. Canada, 2006 FCA 59, [2006] 2 C.T.C. 276 at paragraph 24 and Laperrière
v. D & A MacLeod Company Ltd., 2010 FCA 84 at paragraph 18. Authorities
such as these recognize that court orders are binding when they are made and
they should not be suspended merely on the basis of assumption and assertion.
[16]
There is
no evidence in this motion as to the nature or quality of the documents and
information that might be disclosed, why they might be confidential, and what
harm would result if confidentiality is lost. There is no evidence that the
documents and information in issue here are more sensitive than those that are
regularly disclosed to opposing parties in an action such as this. There is no
evidence showing why available mechanisms to protect confidentiality will not
suffice, such as the implied undertaking of confidentiality (see Juman v. Doucette, 2008
SCC 8, [2008] 1 S.C.R. 157) and the availability of confidentiality orders in
appropriate circumstances. In that regard, five months ago, Garford invited
Dywidag to comment and agree on a draft confidentiality order, all-encompassing
in scope. From Dywidag, there has been silence.
- II -
[17]
As
mentioned above, Dywidag also asserts that it will suffer irreparable harm for another
reason: if this Court does not grant the stay, confidential documents and
information will be produced and the appeal in this Court will be moot or
academic, i.e. will have no practical consequences.
[18]
I do not
agree. If this Court allows the appeal from Justice Zinn’s decision,
Prothonotary Milczynski’s order will be reinstated. Many practical consequences
would follow from that. Any documents that are relevant to remedial issues and
that were produced to the defendants as a result of Justice Zinn’s order could
be returned to Dywidag. Depending on the scheduling of the appeal to this
Court, a decision of this Court could well be available before the examinations
for discovery start. In this regard, I note that the order of Justice Zinn was
made almost four months ago, on May 28, 2010, and Dywidag has not attempted to limit
or prevent any damage arising from it by expediting this motion for a stay or by
expediting the appeal to this Court.
[19]
Under the scenario
discussed in the preceding paragraph, it is true that Garford might learn some
information from the documents that Dywidag temporarily provided to it. Dywidag
emphasizes this point. It says that when information is provided and later
events show that it should not have been provided, the information cannot be unlearned.
As a result, Dywidag seems to say, there must automatically be a finding of irreparable
harm. It cites three cases in support of its submission: Pelletier v. Canada
(Attorney General), 2004 FCA 277, 337 N.R. 319; Canada (Minister of National
Revenue) v. National Foundation for Christian Leadership, 2005 FCA 20, 1
C.T.C. 349; Eli Lilly and Co. v. Interpharm Inc. (1993), 63 F.T.R. 169
(F.C.).
[20]
These
cases do not support Dywidag’s submission. Instead, they show that much turns
on the nature of the information provided and the nature of the harm caused by the
fact that the recipient of the information cannot unlearn it – matters that are
established by evidence. Here, no evidence has been supplied.
C. Disposition
[21]
Accordingly,
the motion for a stay is dismissed, with costs.
"David
Stratas"
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