Date: 19991019
Docket: T-1754-98
MONTRÉAL, QUEBEC, OCTOBER 19, 1999
Before: RICHARD MORNEAU, PROTHONOTARY
Between:
FIBROCAP INC.,
Plaintiff,
AND
MORY PLASTIQUES INC.,
Defendant.
ORDER
THE COURT ORDERS the following:
AUTHORIZES the plaintiff to continue the examination for discovery of the defendant"s representative, Yvon Morin, held on June 17, 1999 and adjourned on that date because of an objection by counsel for the defendant, and orders that this examination be completed in Montréal;
DIRECTS the defendant to answer the plaintiff"s questions to which an objection was raised at that examination seeking information about any Vistacab pick-up fastener model developed after the action was brought;
DIRECTS the defendant to provide the plaintiff with any material evidence regarding any Vistacab pick-up fastener model developed after the action was brought;
THE WHOLE with costs.
Richard Morneau
Prothonotary
Certified true translation
Bernard Olivier, LL. B.
Date: 19991019
Docket: T-1754-98
Between:
FIBROCAP INC.,
Plaintiff,
AND
MORY PLASTIQUES INC.,
Defendant.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This is an application by the plaintiff seeking a ruling in its favour on an objection raised by the defendant at the examination for discovery of the latter"s representative.
[2] The plaintiff brought an action for infringement of its Canadian patent 2,083,300, alleging that the defendant was manufacturing and selling, without licence or permission, pick-up cabs equipped with a fastener system having the characteristics described in the patent.
[3] After the action was brought the defendant apparently modified the fastener system with which it was equipping its Vistacab pick-up cabs at the time the action was brought and the plaintiff said it was entitled to obtain information on this later model.
[4] The plaintiff held an examination of a representative of the defendant, Yvon Morin, in Québec on June 17, 1999.
[5] During the examination Mr. Morin stated that the defendant had terminated manufacture of the second fastener system model it was using at the time the instant action was brought and had subsequently developed a third model.
[6] In the examination counsel for the defendant objected to any question regarding this third fastener model, alleging that there was no relevance as the third model could not be covered by the plaintiff"s action since it had been developed after the action was brought.
[7] At the hearing of the motion at bar counsel for the defendant sought to base his objection on the fact that the plaintiff"s statement of claim was defective and inadequate in its description of the various fastener system models.
[8] As to the alleged lack of details in the statement of claim, this ground cannot stand in the case at bar since at all relevant times to date the defendant has indicated satisfaction with the wording of the statement and has filed no application for particulars.
[9] Further, in my view the plaintiff"s statement is directed at an ongoing infringement and according to the language used in its wording it applies to the general manufacturing process of any infringing model. Accordingly, based on the principles developed by this Court in CSI Manufacturing and Distribution Inc. et al. v. Astroflex Inc. (1993), 52 C.P.R. (3d) 483 (F.C.T.D.), per Teitelbaum J., at 489-492, and Congoleum-Nairn Inc. et al. v. Armstrong Cork Canada Ltd. et al. (1975), 19 C.P.R. (2d) 66 (F.C.T.D.), per Walsh J., at 67 and 69-70, the plaintiff"s motion must be allowed with costs and an order made accordingly.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
October 19, 1999
Certified true translation
Bernard Olivier, LL. B.
Between:
FIBROCAP INC.,
Plaintiff,
AND
MORY PLASTIQUES INC.,
Defendant.
REASONS FOR ORDER
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| COURT FILE No.: T-1754-98 |
| STYLE OF CAUSE: FIBROCAP INC., |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 18, 1999 |
| REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY |
| DATE OF REASONS FOR ORDER: October 19, 1999 |
| Kamila Wirpszo for the plaintiff |
| Ronald Fecteau for the defendant |
| Alain R. Pilote Law Firm for the plaintiff |
| Monty Coulombe for the defendant |
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