Date : 19990915
Docket : T-284-97
BETWEEN:
DUPONT CANADA INC.
Plaintiff
(Appellant)
- and -
EMBALLAGE ST-JEAN LTÉE
Defendant
(Respondent)
REASONS FOR JUDGMENT
[Delivered from the Bench in Ottawa, Ontario
on Friday, September 10, 1999]
HUGESSEN, J.
[1] This is an appeal of a decision of Mr. Prothonotary Lafrenière by which he allowed the defendant"s motion and ordered the plaintiff"s representative on discovery to answer four questions being questions 74, 77, 78 and 188. I set the questions out below:
| 74. Q. The sealant film, to your knowledge, is it made from a material comprising about 50 to 100 parts of a linear copolymer of ethylene? |
| MR. CLARIZIO: If your knowledge is obtained from the tests that were made, then we will refuse to answer the question, so I will -- |
| Q. If you have knowledge, does it come from the tests? |
| R/F MR. CLARIZIO: Privileged. |
*****
| 77. Q. To your knowledge, does the ... whether a defendant"s sealant film is made from a C6 to C10 alpha olefin? Again if your knowledge comes from the tests, don"t answer and we will take an objection. |
| THE DEPONENT: That"s where it would come from. |
| 78. Q. And do you know whether the defendant"s sealant film has a density from .916 to .930 grams per cubic centimetre? |
| R/F MR. CLARIZIO: Again it comes from the tests, we claim privilege on it. |
*****
| 188. MR. SOTIRIADIS: All right. Maybe this was part of the under advisement, but I want to know whether it is the position of the plaintiff that the resins of the defendant have a density of .916 -- sorry -- between .916 and .930, and whether it is the plaintiff"s position that the pouches made by the customers of defendant have a density of between .916 and .930, that sort of flow from the response to the analyses, but I think it is clearer this way. |
| U/A MR. CLARIZIO: I will take that under advisement as well. |
[2] There can be no doubt as to the relevance of these questions. They all deal directly, and I may say bluntly, with the infringing or non-infringing character of the defendant"s product; they all seek information as to the plaintiff"s knowledge of whether or not the defendant"s product meets or falls within certain of the parameters set out in the relevant claim of the subject patent.
[3] The questions were refused to be answered, however, on the ground of litigation privilege. Litigation privilege is not the same as solicitor and client privilege. It is in my view a far more restricted privilege than that which attaches to communications between solicitor and client. It is my view that the privilege attaches to documents conveyed to a solicitor for the purposes of or in contemplation of litigation. It does not, however, apply to relevant facts which are within a party"s knowledge, even thought the information may also be contained in documents which are generated for the purposes of litigation. It is the fact of communication and not the fact communicated which is protected.
[4] It must be born in mind as well that examination for discovery is an examination not of a witness but of a party and what is being sought is the knowledge of the party with respect to the facts which are relevant and an issue in the subject litigation.
[5] I am aware that there are decisions of this Court which have given a broad scope to litigation privilege1. With great respect, I think that those decisions, some of them, have gone too far. I think I prefer to hark back to the decision of President Jackett in the Susan Hosiery Limited v. The Minister of National Revenue2 and to a much more recent decision of the Nova Scotia Court of Appeal in the case of Global Petroleum v. CBI Industries Inc. et al3. Each of those judgments draws the distinction which I have just made.
[6] If I were to attack the question from the point of view of principle, I would find that the result I have just suggested is also the proper one.
[7] The purpose of the litigation privilege is, as counsel for the plaintiff rightly told me during argument, to protect the sanctity of the solicitor"s file. The sanctity of the solicitor"s file is not going to be breached by the revelation of knowledge obtained by the client simply because that knowledge was obtained during the course of preparation for or in contemplation of litigation.
[8] When I balance that interest against the interests of a procedure which seeks to achieve the most expeditious and least expensive resolution of every case on its merits, as we are instructed to do by Rule 3, I have very little difficulty in concluding that these questions were properly ordered to be answered. If it should be the case that it is to the plaintiff"s knowledge that the defendant"s product does not fall within the parameters of the relevant claim of the subject patent, then one may very well expect that the defendant will bring a motion for summary judgment and the action will be disposed of at a much earlier stage and at very much less expense to everybody than if it had to go to trial with the inevitable lengthy process of the hearing of expert witnesses on both sides.
[9] If, of course, it is not the case and if in fact the knowledge which the plaintiff has of the technical characteristics of the defendant"s product is such that that product is infringing, there will be no harm done. The questions asked simply seek to obtain from the plaintiff the information which it has with respect to the characteristics of the defendant"s product. That is in my view, not a matter which is or should be covered by the litigation privilege.
[10] Accordingly, the appeal will be dismissed with costs.
OTTAWA
September 15, 1999
__________________
1 See Procter & Gamble Co. et al v. Kimberly-Clark of Canada Ltd. (1990), 35 C.P.R. (3d) 321 and Dupont Canada Inc. v. Glopak Inc. (1997), 72 C.P.R. (3d) 312.
2 [169] Ex.C.R. 27
3 (1998), 172 N.S.R.(2d) 326 (N.S.C.A.).
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