Date: 20050706
Docket: T-76-01
Citation: 2005 FC 946
BETWEEN:
GARFORD PTY LTD.
Plaintiff
- and -
GROUND CONTROL (SUDBURY) LIMITED and
SLING CHOKER MANUFACTURING LIMITED
Defendants
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1] This is a motion for summary judgment brought by the co-defendant, SLING CHOKER MANUFACTURING LIMITED (Sling Choker) seeking the dismissal of the plaintiff's action as against it.
[2] The action is for patent infringement. The plaintiff alleges to be the owner of Canadian Patent Number 2,002,806 (the "'806 Patent") related to bulge cable bolts (which are used as rock anchors in underground mining) and devices and method for making such bulge cable bolts. The first and principal defendant, GROUND CONTROL (SUDBURY) LIMITED (Ground Control) is apparently in the business of making, distributing and selling bulged cable bolts and there are as between it and the plaintiff genuine issues for trial relating, among other things, to infringement and validity. There is no dispute that the two defendants have common ownership and control. The allegations as against Sling Choker have been particularized and are limited in number. It is said that:
- Sling Choker has and continues to manufacture bulge cable bolts covered by the patent in suit in Canada and sell them to Ground Control;
- Sling Choker has made and used bulge cable bolts and cable bulging machines covered by the patent in suit since about September, 1994 and sold them to Ground Control;
- Sling Choker and Ground Control have induced the infringement of the claims of the patent in suit by (i) selling cable bulging machines to each other and (ii) commissioning a third party (Lessard Welding) to build cable bulging machines.
[3] In support of its motion for summary judgment Sling Choker has produced an affidavit of its president and principal shareholder, Mr. Villgren in which he specifically denies each of these allegations and states that Sling Choker went out of the business of cable bolts in 1989 when it transferred that part of its business to its affiliate Ground Control. It has also produced an affidavit of a Mr. Fifield, an employee of the other defendant, Ground Control, and not of Sling Choker, in which he recounts how, acting for his employer he designed and commissioned a cable bulging machine in 1994 which he had built by Lessard Welding in Sudbury. Both of these witnesses were cross-examined at some length and I shall return shortly to those cross-examinations.
[4] In reply to the motion for summary judgment the plaintiff has limited itself to producing certain extracts of Mr. Villgren's evidence on discovery. None of those extracts contain any direct evidence or admission of the above allegations against Sling Choker. The plaintiff argues, however, that, together with the cross-examinations of the defendant's witnesses, they raise sufficient doubts as to the credibility of both Messrs Villgren and Fifield as to indicate that there are serious issues for trial in the case against Sling Choker and to justify the dismissal of the motion. I disagree.
[5] First, it is now well settled that issues of credibility ought not to be resolved on summary judgment motions; (MacNeil Estate v. Canada (Department of Indian and Northern Affairs), [2004] 3 F.C.R. 3 (F.C.A.), paras. 32, 35 and Suntec Environmental Inc. v Trojan Technologies Inc., (2004) 31 C.P.R. (4th) 241 (F.C.A.) para. 20). But, in my view, in order for there to be an issue of credibility justifying dismissing a summary judgment motion and sending a case to trial that issue must relate to some question relating to the merits as to which there is a conflict in the evidence produced on the motion itself. There is no such conflict here for the plaintiff has wholly failed to produce any evidence whatever to support the allegations of its claim against Sling Choker. The most it has done is to suggest certain activities which the latter has not been able to disprove positively but which equally have not been proven by plaintiff itself. The moving defendant having denied under oath the specific allegations against it, it is for plaintiff to produce some evidence in support of its claim. It has not done so notwithstanding full and lengthy discovery.
[6] Second, there is not in my opinion any serious question of credibility here. The defendant's principal witness, Villgren, was cross-examined at length and apart from some understandable vagueness and uncertainties as to the details of a transaction (the sale of its cable bolting business by Sling Choker to Ground Control over ten years ago and some wholly collateral details as to the premises occupied in Sudbury by his various companies) his evidence was not shaken. He may or may not prove to be a credible witness at trial, but on this motion he must be presumed to be one in the absence of any showing to the contrary. An issue of credibility is not raised simply because counsel for one party invites the Court not to accept the evidence proffered by his opponent.
[7] There is slightly more substance to the plaintiff's attack on the credibility of the defendant's other witness, Mr. Fifield. At the very beginning of his cross-examination and before a single question was put to him this witness recanted several paragraphs of his affidavit and changed a number of details of his story. That, however, does not leave the witness' credibility, as plaintiff suggests, "in tatters" although it might suggest a degree of caution in relying on it alone. On the contrary, I am inclined to think that the fault may lie more with the solicitor who drew the affidavit than with the witness who signed it and only realized that it contained inaccuracies when he read it prior to his cross-examination. His evidence as amended by him is not in conflict with any of the other evidence and his credibility is in my view unimpaired.
[8] Plaintiff makes much of the fact that the evidence shows that Sling Choker occasionally leases the services of a delivery truck owned by Ground Control and driven by one of the latter's employees and that neither of defendant's witnesses was able to assert positively that Sling Choker employees have never driven the truck or ridden in it when on delivery trips. This, according to plaintiff is evidence of Sling Choker's participation in Ground Control's infringing activities. It is of course nothing of the sort. The failure to negative a mere possibility of which there is no positive evidence whatever cannot in itself amount to evidence of the probability of the unproven fact.
[9] Finally, plaintiff argues that because both defendants have a common president and controlling shareholder, Villgren, and that there is no active direction by the Boards of either company, Sling Choker's liability is engaged for all infringing activities of Ground Control. I know of no authority to support such a proposition which in my view is at variance with the most elementary tenets of corporate law.
[10] In the result, the motion will be allowed and summary judgment will issue dismissing the action as against Sling Choker. The moving party should have its costs which I would fix in the lump sum of $15,000 payable forthwith. I can see no basis at this time for making a "Bullock" order adding such costs to the plaintiff's damages or a "Sanderson" order imposing them on the other defendant.
ORDER
The motion is allowed and the action as against Sling Choker is dismissed; the latter shall have its costs in the amount of $15,000 payable forthwith.
"James K. Hugessen"
Judge
Ottawa, Ontario
July 6, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-76-01
STYLE OF CAUSE: GARFORD PTY LTD.
- and -
GROUND CONTROL (SUDBURY) LIMITED and
SLING CHOKER MANUFACTURING LIMITED
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 3, 2005
REASONS FOR ORDER: HUGESSEN J.
DATED: July 6, 2005
APPEARANCES:
BRADLEY LIMPERT FOR PLAINTIFF
KENNETH SHARPE FOR DEFENDANTS
SOLICITORS OF RECORD:
GOWLING LAFLEUR HENDERSON LLP
TORONTO, ONTARIO FOR PLAINTIFF
OGILVY RENAULT
OTTAWA, ONTARIO FOR DEFENDANTS
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