Date: 19980921
Docket: T-453-98
BETWEEN:
THE WESTAIM CORPORATION
Plaintiff/
Defendant by Counterclaim
- and -
ROYAL CANADIAN MINT and
THE ATTORNEY GENERAL OF CANADA
Defendants/
Plaintiffs by Counterclaim
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
[1] The plaintiff seeks the substitution of a knowledgeable employee of the Attorney General or of the Patent Office for Pierre Tremblay, an Officer of the Royal Canadian Mint ("the Mint"), as a representative of the Attorney General. In this action, the plaintiff alleges infringement of the plaintiff's patent by The Mint. The Mint and the Attorney General have counterclaimed for invalidity. The Mint has appointed one of its vice-presidents (Mr. Tremblay) as the representative to be examined on its behalf. The Attorney General has appointed the same man as her representative. At issue in the counter claim is the possible error in the Patent Office of which an Officer of the Mint has, by his occupation it is alleged, little more knowledge than a passerby in the street. Of course, it may be that because of his knowledge of manufacturing coins the representative is a qualified person to give useful evidence on behalf of the Attorney General with respect to invalidity. That can only be discovered when he is examined as a representative of the Attorney General. For that reason, the motion is premature.
[2] The next thought is whether it is the intention of the Rules to allow a corporation or the Crown to select an unconnected person to be examined on its behalf for discovery. Such a determination requires some research into the meaning of "representative" and I therefore reserved my decision. I have found nothing which would restrict the appointment of any person as a representative and conclude that any person who is willing to undertake the obligation under Rule 241 could be appointed.
[3] I have considered also the possibility of possibly conflicting loyalties giving rise to a conflict of interest. I have concluded that just as an agent may have many principals so may a representative. When a conflict does arise, the representative will have to retire - perhaps as a representative of both.
The substitution motion must be dismissed at this time. If at a later date the plaintiff's fears are realized and a new representative has to be appointed, no doubt relief will be sought under Rule 400(3)(i) for the time wasted on discoveries to that time.
IT IS HEREBY ORDERED THAT:
The motion is dismissed as premature without prejudice to the plaintiff's rights to bring a further motion if circumstances change.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
September 21, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-453-98
| STYLE OF CAUSE: THE WESTAIM CORPORATION |
- and -
| THE ATTORNEY GENERAL OF CANADA |
DATE OF HEARING: MONDAY, SEPTEMBER 21 , 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GILES, A.S.P.
DATED: MONDAY, SEPTEMBER 21, 1998
APPEARANCES:
Ms. Barbara Murchie
For the Plaintiff
Mr. Andrew McIntosh
For the Defendants
SOLICITORS OF RECORD:
| Sim, Hughes, Ashton and McKay |
| Barristers and Solicitors |
For the Plaintiff
Morris Rosenberg
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 19980921
Docket: T-453-98
Between:
Plaintiff
- and -
| THE ATTORNEY GENERAL OF CANADA |
Defendants
REASONS FOR ORDER
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