Expressvu Inc. v. Nii Norsat International, docket T-1639-96

     T-1639-96

BETWEEN:

     EXPRESSVU INC.,

     ALLARCOM PAY TELEVISION LIMITED,

     THE FAMILY CHANNEL INC., and

     TMN NETWORKS INC.

     Plaintiffs

     - and -

     NII NORSAT INTERNATIONAL INC. c.o.b. 'AURORA DISTRIBUTING',

     PRICE COSTCO CANADA INC., LONDON DRUGS LIMITED,

     A.C.E. IMPORTS INTERNATIONAL INC.,

     THE (DISCOUNT) STEREO STORE LTD. c.o.b. 'BASE ELECTRONICS'

     BASE ELECTRONICS CORP., A & B SOUND LTD.,

     JERRY'S RADIO & T.V. OF BARRIE LIMITED,

     HI-FI 2000 (YORKDALE) LTD.

     Defendants

     REASONS FOR ORDER

JEROME, A.C.J.:

     This is an application by the defendants NII Norsat International Inc. c.o.b. "Aurora Distributing"; The (Discount) Store Ltd. c.o.b. "Base Electronics"; and, Base Electronics Corp., for an order pursuant to Rule 332(1) of the Federal Court Rules striking out certain paragraphs or parts of paragraphs of six affidavits filed by the plaintiffs in support of their motion for an injunction and for summary judgment. The defendants also seek an order that the full text of the licensing agreements appended to the affidavits of Mr. Len Cochrane and Ms. Lisa DeWilde be provided to the defendants for cross-examination thereon and that the president, or other knowledgeable officer from the licensor, be examined as a witness on the motion. In addition, the defendants ask that their Amended Statement of Defence be filed by the Court.

     The plaintiffs, by Notice of Motion dated November 24, 1996, also seek an order striking out certain affidavits filed by the defendants. In addition, they seek an order compelling Mr. John Anderson, former president of the defendant NII Norsat International Inc., to appear at his own expense for cross-examination on his affidavit sworn August 23, 1996.

     These matters were heard on November 28, 1996, and January 22, 1997, at Toronto, Ontario, and at the conclusion of argument, taken under reserve.

     I turn first to the defendants' application for an order striking out certain paragraphs or parts of paragraphs of six affidavits filed by the plaintiffs. On November 8, 1996, the plaintiffs filed a Notice of Motion seeking injunctive relief and summary judgment. In support of the application, six affidavits were also filed. The defendants seek to have certain parts of the affidavits struck on the grounds that they do not comply with Rule 332(1) of the Federal Court Rules which states:

     I am satisfied that the paragraphs in question do not comply with Rule 332(1) and are therefore inadmissible. Many of the statements are not evidence within the knowledge of the affiants but, rather, constitute expressions of opinion on the very questions of law which the Court is being called upon to decide.

     I have in mind several references to the "unlawful conduct" of the defendants; "that the defendants know that the equipment they are selling can only be used for unlawful purposes"; that the defendants are conducting themselves "in a manner that unlawfully interferes with the rights" of the plaintiffs; and, that the defendants "know that it is unlawful for a person in Canada to decode an American encrypted programming signal". Statements of this nature, which appear throughout the impugned affidavits, are expressions of the affiants' legal opinions and as such, do not comply with Rule 332(1). As stated in Bell Canada v. Canada (Cdn. Human Rights Commission), [1991] 1 F.C. 356 (T.D.) at 359 and 361:

     The affidavits also contain numerous statements which have little or no probative value for the issues before the Court. There is conjecture, speculation about hypothetical events or what is in the mind of other persons, statements which are irrelevant or immaterial to the issues in this litigation, or which are based on information and belief without stating the source of the information.

     For these reasons, the defendants' application with respect to the striking out of certain paragraphs, or parts of paragraphs, of the plaintiffs' affidavits is allowed. The affidavits of Luther Haave, sworn November 4, 1996, and Lisa DeWilde, sworn October 28, 1996, are struck out in their entirety. The paragraphs in the affidavits of Len Cochrane, sworn October 24, 1996; Terrence Snazel, sworn October 24, 1996; Donald Best, sworn October 30, 1996; and, Christopher Frank, sworn October 23, 1996, are struck out in accordance with Appendix 1 of the defendants' Notice of Motion, dated November 18, 1996. The defendants' application for an order that the full text of the licensing agreements appended to the affidavits of Mr. Len Cochrane and Ms. Lisa DeWilde be produced to the defendants for cross-examination thereon is dismissed as those portions of the affidavits addressing the agreements have been struck out.

     The preliminary issue raised at the hearing on January 22, 1997, was whether the defendants were entitled to file an Amended Statement of Defence. This question arose as a result of the Order of the Associate Senior Prothonotary, dated October 28, 1996, wherein certain parts of the defendants' Statement of Defence were struck. On November 13, 1996, the defendants attempted to file an Amended Statement of Defence. The plaintiffs objected to the filing of the document on the grounds that pleadings were closed.

     Rule 421 of the Federal Court Rules permits a party to amend its pleadings at any time, without leave, provided the other party has not pleaded thereto. Here, it is clear that the plaintiffs have not filed a reply and pleadings, therefore, have not closed. For these reasons, I ordered that the defendants were entitled to file their Amended Statement of Defence and did not require leave of the Court to do so.

     The plaintiffs objected to the affidavit of Anette Chawla, sworn October 8, 1996, on the grounds that it contains excerpts of Parliamentary debates, newspaper articles and T.V. guides. It is submitted that the information contained therein is hearsay, serves no useful purpose and will prolong the proceedings.

     I am satisfied that the affidavit complies with Rule 319 and should not be struck. First, the jurisprudence is clear that Parliamentary debates are admissible and the only question is one of the weight to be accorded to such evidence. In addition, the newspaper articles are not submitted for the truth of their contents but are relevant to the issue of costs. The magazines and the T.V. guides are being introduced to demonstrate that there is an established industry, a matter which is directly relevant to the issue of balance of convenience. All of the material to which the plaintiffs object, therefore, is admissible and the only manner in which it can be brought before the Court is by means of an affidavit.

     With respect to the affidavit of Mr. Anderson, it is my view that an order should not issue requiring him to attend for cross-examination. Mr. Anderson is no longer president of the defendant Norsat and does not represent the company in any way. The affidavit was never filed with the Court and the plaintiffs have been advised on several occasions that the defendants do not intend to rely upon it. On the contrary, a substitute affidavit from the new president of the company, Mr. Chapman, has been filed. This witness was cross-examined and when he did not know the answer to questions posed, gave undertakings to obtain the information and provide it to the plaintiffs. There is no indication here, nor did plaintiffs' counsel suggest, that his cross-examination of Mr. Chapman was in some way unsatisfactory or failed to provide him with answers that he hoped would be forthcoming from Mr. Anderson.

     For these reasons, the defendants' application with respect to striking out the affidavits, or parts of the affidavits, filed by the plaintiffs in support of their motion for summary judgment is allowed. The plaintiffs' motion to strike the affidavit of Anette Chawla, sworn October 8, 1996, is dismissed as is its application for an order compelling Mr. John Anderson to appear for cross-examination.

     As I indicated at the conclusion of the hearing, the parties, after having read these reasons, are invited to make submissions, either orally or in writing, with respect to the question of costs and any special directions required by these reasons.

O T T A W A

March 10, 1997                      ________________________________

                             A.C.J.