Date: 20011025
Docket: T-2406-93
Neutral citation: 2001 FCT 1162
BETWEEN:
JAMES W. HALFORD and
VALE FARMS LTD.,
Plaintiffs,
and
SEED HAWK INC., PAT BEAUJOT,
NORBERT BEAUJOT, BRIAN KENT and
SIMPLOT CANADA LIMITED,
Defendants
REASONS FOR ORDER
PELLETIER J.
[1] The court is confronted with a curious problem which has its origin in the unique way in which this case developed. One of the plaintiff's witnesses, Dr. Tessier has sworn 3 affidavits. The first was his evidence in chief as contemplated by Rule 279. As the pre-trial proceedings unfolded, further affidavits were filed in response to affidavits filed by the defendant's experts both on the issue of infringement, which is the plaintiff's case, and in respect of invalidity, in respect of which the plaintiff is the defendant by counter claim. There are paragraphs in the second affidavit which are said to relate to the issue of infringement and which can stand on their own without reference to the affidavits which may have provoked their preparation. The plaintiff seeks to have these additional paragraphs go in as part of its case in chief, as opposed to waiting till the defendant's experts have testified.
[2] Mr. Macklin objects to this course of action saying that it deprives his client of its right of reply to the additional paragraphs as it would have had if the evidence had been contained in the first affidavit. The rules stipulate that expert evidence is not admissible in chief if it is not contained in an affidavit which sets out in full the proposed evidence. The opposing party's affidavit in hand, the responding party then prepares its affidavit which presumably contains its case in chief as well as its comments in rebuttal of the original expert's evidence. In the ordinary course, the entire version of the plaintiff's expert testimony goes in at once and the defendant has one opportunity to make it case and rebut the plaintiff's case.
[3] By now, I am sure that everyone devoutly wishes that that course had been followed in this case. If the evidence in chief of the plaintiff's witness from the second affidavit goes in, the defendants will have been denied the opportunity to see the whole of the plaintiff's case at once and to respond to it and advance its case at one time. On the other hand, one can anticipate the argument that if the evidence does not go in now, in chief, an objection will be raised to it going in later on the ground that the plaintiff cannot split its case and that only rebuttal evidence is to be heard. All of the affidavits in question were filed with leave of the court. It would be unfair to put the parties in the position of following the directions of the court and then arguing that they have not complied with the rules.
[4] If one attempts to deal with the question on the basis of first principles, the starting proposition is that a party must put in its entire case at once. Rules 279 and 281 incorporate that principle but both rules are subject to the court ordering otherwise. It is my view that all of the plaintiff's evidence as to infringement ought to go in at once, regardless of the where in the series of affidavits that evidence first arose, subject to one caveat. Evidence which is purely in rebuttal to the defendant's affidavits should only go in after the defendant's evidence is in. But, given the history of this matter, any evidence going to infringement which is capable of standing on its own without reference to any opponent's affidavit should go in through the witness in chief.
[5] This leaves the issue of prejudice to the defendant. The prejudice which arises is not one of surprise to the defendant since the plaintiff's affidavits have been in their hands for some time. The prejudice is the loss of the ability to respond to the plaintiff's evidence in the defendant's affidavits in chief. It is open to the court to make an order allowing the defendant to respond to the plaintiff's case even though the evidence to be given has not been reduced to an affidavit. There is the possibility of surprise to the plaintiff in such a course of action but given the number of affidavits and the long history of this matter, I suspect that there are few surprises left. There is much to be said for proceeding as the rules contemplate but in the circumstances of this case, the parties would both be prejudiced by doing so. I will therefore allow the plaintiff to put in all of Dr. Tessier's evidence as to infringement in chief without regard to when that evidence was reduced to affidavit form. In order to do justice to the defendant, I will order that the defendant's experts who are called to contradict Dr. Tessier's evidence will be allowed to give oral evidence as to matters not contained in their affidavits but limited to rebuttal of the evidence allowed in under this ruling providing that a written summary of the evidence proposed to be given which does not appear in their affidavits is provided to plaintiff's counsel one day before such witness is called to give evidence. In the event that it is necessary to do so with other expert witnesses, the same procedure will be followed.
[6] If the plaintiff wishes to call an expert witness to give rebuttal evidence as to a matter raised for the first time in the oral evidence permitted by this ruling, a written summary of the evidence to be given in rebuttal will be provided to defence counsel one day before the witness takes the stand, or with leave of the court in the case of witnesses called at the very end of the defendant's case, before the witness takes the stand.
[7] One then gets to the question of field trials. In my earlier ruling, I held that I would not allow evidence of field trials conducted in 1999 because no notice was given to the defendants and no opportunity to attend was provided them. I am now asked to make the same ruling with respect to field trials conducted in July 2000, which is after the date of the case management conferences where these matters appear to have been raised. It is acknowledged that the defendant conducted field trials in May 2000 which will also be caught by whatever ruling I make in relation to the plaintiff's field trials.
[8] This case was the subject of case management for a considerable period of time. It is my view that both parties believed that they were acting under judicial direction when they conducted their tests in 2000. I am not entirely certain that Mr. Halford's evidence cannot stand with the minutes of the case management conference in the sense that no order being made with respect to the plaintiff's attendance at the defendant's tests is consistent an understanding that the plaintiff's representatives would not attend. To the extent that the minutes speak of no order being made, no one has suggested that the order under discussion was one which restrained the plaintiffs from attending at the defendant's field trials. I think it much more likely that any order which was contemplated was one which permitted the plaintiff's representatives to attend at the defendant's trials. If the court refused to make such an order, it can only indicate an understanding consistent with that expressed in Mr. Halford's affidavit, that is that each party would conduct its tests ex parte.
[9] There is therefore an explanation for the way in which events transpired in 2000 which explains the failure to proceed as the law with respect to tests and trials would dictate. Does that explanation overcome the problem of admissibility? One option is to refuse to hear evidence of either set of tests. While I have not heard much of the evidence I suspect that the parties have structured their cases around the results of those trials. Ruling them inadmissible is likely to deprive the parties of the opportunity of putting in their best cases. I prefer to allow the results of the tests to go in, subject the experts to cross examination on their tests and to have the results go to the weight to be given to the evidence. As a result, I will permit evidence to be led with respect to the July 2000 field trials referred to in Dr. Tessier's affidavit. This ruling will also apply to the defendants trials conducted in May 2000. However, my ruling with respect to the 1999 field trials remains in effect and no evidence will be allowed with respect to those trials.
[10] This is not an ideal solution but, in my view, to proceed otherwise, having regard to the history of these proceedings, would give rise to a justifiable sense of injustice.
"J.D. Pelletier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: T-2406-93
NEUTRAL CITATION NO: 2001 FCT 1162
STYLE OF CAUSE: James W. Halford and Vale Farms Ltd. v. Seed Hawk Inc., Pat Beaujot, Norbert Beaujot, Brian Kent and Simplot Canada Limited
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 15, 2001
REASONS FOR ORDER OF
THE HONOURABLE MR. JUSTICE PELLETIER
DATED OCTOBER 25, 2001
APPEARANCES
Steven Raber for the Plaintiff
Dean Giles
Alexander Macklin for the Defendant-Seed Hawk
Doak Horne
Wolfgang Riedel for the Defendant -Simplot
SOLICITORS OF RECORD
Fillmore Riley for the Plaintiff
1700 Commodity Exchange Tower
360 Main Street
Winnipeg, MB R3C 3Z3
Gowlings for the Defendant-Seed Hawk
Suite 1400
700 - 2nd Street S.W.
Calgary, AB T2P4V5
Meighen, Haddad & Co. for the Defendant-Simplot
Barristers & Solicitors
P.O. Box 22105
110 - 11th Street
Brandon, MB R7A 6Y9
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