Date: 20020710
Docket: T-2406-93
Neutral Citation: 2002 FCT 764
Ottawa, Ontario, this 10th day of July 2002
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
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
[1] The Seed Hawk defendants tender Mr. Clifford Anderson, a distinguished mechanical engineer, as an expert in mechanical engineering to give opinion evidence as to the design and operation of mechanical devices. The plaintiff opposes the qualification of Mr. Anderson as an expert for the purposes of this trial on the ground that he has no relevant training or experience in the art which is the subject matter of the patent.
[2] Mr. Anderson graduated with a B.A.Sc. in Mechanical Engineering from the University of British Columbia in 1963. He undertook graduate studies in that discipline, obtaining an M.A.Sc. in Mechanical Engineering from the University of British Columbia in 1965. Following his graduate degree, Mr. Anderson became a member of what is now known as the Association of Professional Engineers, Geologists and Geophysicists of Alberta, which enabled him to use the designation Professional Engineer. He is currently also a member of the Association of Professional Engineers of Ontario.
[3] Mr. Anderson's professional career began with an appointment as Associate Research Officer in the Industrial and Engineering Services Division of the Alberta Research Council where he worked with inventors and consulted on patent matters. He held that position from 1965 to 1970. He has been a consulting engineer since 1970, initially in a firm known as Quintex Engineering Ltd. where he was a principal in the firm. Quintex became Anderson Wiskel & Associates Ltd in 1977 due to the progressive withdrawal of Mr. Anderson's partner from professional practice. Finally, in 1986, Mr. Anderson's partner withdrew entirely from professional practice and the firm became known as Anderson Associates Consulting Engineers Inc.
[4] Mr. Anderson's evidence is that the nature of the work done by the firm has remained fairly diverse over the years as has his own practice. He testifies that he has not restrict himself to any particular branch of mechanical engineering and has gained a wide expertise in solving various mechanical engineering problems. His resume highlights a practice in accident reconstruction, vehicle defect analyses and general disaster analyses. In addition to this he has developed considerable expertise in the oil and gas industry. He has been granted 11 Canadian patents over the years, the bulk of which relate to the oil and gas industry.
[5] Mr. Anderson is a member of a number of learned societies including the Society of Automotive Engineers, the American Society of Mechanical Engineers, the Canadian Society of Forensic Science, the Canadian Association of Technical Accident Investigators and Reconstructionists, the American Academy of Forensic Sciences, the Association for the Advancement of Automotive Medicine and the International Institute of Forensic Sciences Inc. His curriculum vitae discloses that he has authored a series of papers, all of which were delivered to societies associated with forensic science.
[6] Mr. Anderson has testified as an expert in patent litigation on two previous occasions. Both involved the oil and gas industry.
[7] Mr. Anderson admitted candidly that he has no particular experience in the design of farm or seeding equipment beyond his general background in mechanical engineering. He also admitted that he has no background in soil science or soil dynamics. He has a casual acquaintance with farms but, as he put it, "I don't drive tractors". He acknowledged that he has no prior experience with fertilizer placement. He indicated that prior to becoming involved in this litigation, he had no knowledge of the prior art. Such knowledge of the prior art as he now possesses was acquired for the purposes of this litigation.
[8] Mr. Raber quoted extensively from the authorities relating to the qualification of experts. Many of the cases to which he referred arose in the criminal law context. I will not review them in detail because I do not believe that the parties differ on the principles applicable to the admission of expert evidence but on their application in this case. The criteria for the admission of expert evidence were set out in R. v. Mohan, [1994] 2 S.C.R. 9 at p. 20:
Admission of expert evidence depends on the application of the following criteria:
a) relevance;
b) necessity in assisting the trier of fact;
c) the absence of any exclusionary rule;
d) a properly qualified expert.
[9] It is the criterion of "a properly qualified expert" which is in issue in these proceedings as the other three criteria are not contentious. On this point, Mr. Raber relies on the following passage from H.G.Fox, The Canadian Law and Practice Relating to Letters Patent For Inventions, 4th ed. (Toronto: Carswell, 1969) which was cited in Nekoosa Packaging Corp. v.AMCA International Ltd (1994), 56 C.P.R. (3d) 470 at p.478 :
In order to qualify as an expert whose testimony will carry conviction, such a witness should be skilled in the art to which the patent relates. The evidence of a mere mechanical engineer or scientific man who speaks from general knowledge rather than from special knowledge of the art concerned will not be regarded by the court as entitled to much weight.
[10] These comments were offered as authority for the proposition that an expert who speaks from general knowledge cannot be qualified as an expert in a matter in which there is a body of special knowledge. The passage cited above would not appear to go that far. The penalty for speaking from general knowledge is that the evidence may not "carry conviction" or be "entitled to much weight". The author of the text obviously contemplated that a person of general knowledge could be qualified as an expert but in his view, the opinion of such an expert should be given little weight. But if a party wishes to tender such an expert, and the other criteria for the admission of expert evidence are met, there appears to be no reason why the expert's evidence should not be received. The weight to be assigned to such evidence is a matter to be considered by the trier of fact.
[11] The evidence as to Mr. Anderson's qualifications satisfies me that his training and experience as a mechanical engineer are such that he would be of assistance to the court in understanding the design and operation of mechanical devices, including seeding devices. He has not made a particular study of seeding devices, except in connection with his participation in these proceedings. But there is nothing before me which would lead me to the conclusion that seeding devices are so peculiar that only one who has made a special study of them would be in a position to assist the court.
[12] In the end result, I will accept Mr. Anderson as an expert for the purpose of offering opinion evidence on the subject of the design and operation of mechanical devices.
"J.D. Denis Pelletier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2406-93
STYLE OF CAUSE:
JAMES W. HALFORD and VALE FARMS LTD.
-and-
SEED HAWK INC., PAT BEAUJOT, NORBERT BEAUJOT,
BRIAN KENT and SIMPLOT CANADA LIMITED
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: JUNE 17, 2002
REASONS OF THE HONOURABLE MR. JUSTICE PELLETIER
DATED: JULY 10, 2002
APPEARANCES:
MR. STEVEN RABER FOR PLAINTIFF
MR. DAN GILES
MR. ALEXANDER MACKLIN FOR DEFENDANTS (SEED
MR. DOAK HORNE HAWK INC., PAT BEAUJOT,
MS. IRENE BRIDGER NORBERT BEAUJOT, BRIAN
KENT)
MR. WOLFGANG RIEDEL FOR DEFENDANT (SIMPLOT
CANADA LIMITED)
SOLICITORS OF RECORD:
FILEMORE RILEY FOR PLAINTIFF
WINNIPEG, MANITOBA
GOWLING, LAFLEUR, HENDERSON FOR DEFENDANTS (SEED
CALGARY, ALBERTA HAWK INC., PAT BEAUJOT,
NORBERT BEAUJOT, BRIAN
KENT)
MEIGHAN, HADDAD AND COMPANY FOR DEFENDANT (SIMPLOT
BRANDON, MANITOBA CANADA LIMITED)
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