Axia Inc. v. Northstar Tool Corp., 2005 FC 526

Date: 20050419

Docket: T-1123-04

Citation: 2005 FC 526

Vancouver, British Columbia, Tuesday, the 19^th day of April, 2005

Present:           THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN

BETWEEN:

                                                         AXIA INCORPORATED

                                                                                                                                               Plaintiff

                                                                                                                                          (Applicant)

                                                                         - and -

                                            NORTHSTAR TOOL CORPORATION

                                                                                                                                           Defendant

                                                                                                                                      (Respondent)

                                            REASONS FOR ORDER AND ORDER

[1]                The Applicant brought a motion under Rule 312(c) and Rule 313 of the Federal Court Rules to file supplementary transcript evidence arising out of the examination of Mr. David Dick and Northstar Tool Corporation on March 16 and 17, 2005, under Supreme Court Action No. S033105. Such material would be used to supplement the application the Applicant is to bring under s. 52 of the Patent Act, pursuant Rule 301 of the Federal Court Rules.

[2]                The Applicant contends that he complied with the requirements to file a supplementary record as set out in Lapointe Rosenstein v. Atlantic Engraving Ltd. (2002) 23 C.P.R. (4^th) 5, namely:

(a)         the evidence to be adduced will serve the interests of justice;

(b)         the evidence will assist the Court;

(c)         the evidence will not cause substantial or serious prejudice to the other side;

(d)         the evidence sought to be adduced was not available at an earlier date;

(e)         the evidence will not unduly delay the proceedings

[3]                In my view, the Applicant fails in regard to point (d) above. I note that the Applicant never cross-examined Mr. David Dick in respect of the s. 52 motion that he filed. It is his contention that the affidavit filed by Mr. David Dick was basically useless and that the rules of cross-examination do not allow him to go on a fishing expedition. He relies on Governor and Company of The Bank of Scotland v. Nel (The) [1998] F.C.J. No. 1499.

[4]                It is well established that cross-examination on an affidavit is not confined by the four corners of the affidavit but includes any matter relevant for determination of the issue in respect of which the affidavit is filed. Equally, a deponent has a duty to become informed on matters in issue that are within his knowledge or means of knowledge. See Weight Watchers International Inc v. Weight Watchers of Ontario Ltd. No. 2, (1972) 6 C.P.R. (2d) 169 and Merck & Co. Inc. v. Apotex Inc. (1996), 67 C.P.R. (3d) 147.

[5]                Without such cross-examination having taken place, I am not convinced that the evidence sought to be adduced here was not available earlier.

[6]                It is well established that the ambit of a cross-examination on an affidavit is narrower than an examination for discovery. See Bally-Midway Manufacturing Co. v. M.J.Z. Electronics Ltd. (1984), 75 C.P.R. (2d) 160. I am reluctant to give the Applicant the benefit of such a wider ambit when he has not even attempted to obtain the evidence under the narrower cross-examination ambit available to him as part of his Rule 301 motion.

                                                                       ORDER

THIS COURT ORDERS that this motion be dismissed. There will be no order as to costs.

(Sgd.) "K. von Finckenstein"

Judge

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1123-04

STYLE OF CAUSE:                          AXIA INCORPORATED

- and -

NORTHSTAR TOOL CORPORATION

PLACE OF HEARING:                    Vancouver, BC

DATE OF HEARING:                      April 18, 2005

REASONS FOR ORDER AND ORDER:                           VON FINCKENSTEIN J.

DATED:                                                                                  April 19, 2005

APPEARANCES:

Mr. Michael Bain                                                                       for Applicant

Mr. James Gould

Mr. Alexander Northey                                                             for Respondent

SOLICITORS OF RECORD:

Lawson Lundell                                                                         for Applicant

Vancouver, BC

Alexander Holburn Beaudin & Lang     for Respondent

Vancouver, BC