Docket: T-436-05
Citation: 2011 FC 1318
Ottawa, Ontario, November 17, 2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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VARCO CANADA LIMITED
VARCO, L.P.
WILDCAT SERVICES, L.P. and
WILDCAT SERVICES CANADA, ULC
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Plaintiffs
(Defendants by Counterclaim)
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and
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PASON SYSTEMS CORP. and
PASON SYSTEMS INC.
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Defendants
(Plaintiffs by Counterclaim)
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REASONS FOR ORDER AND ORDER
[1]
In
their most recent motion, the Defendants seek to expand the existing order for
the taking of commission evidence at the re-opened trial in Texas. In
particular, they now seek to call, as rebuttal witnesses, Messrs. Doughtie and
Finney, and to have new letters of request issued to U.S. judicial
authorities to compel the attendance of Mr. Doughtie. Mr. Finney is said to be
prepared to appear voluntarily.
[2]
The
current motion is made against the background of the Defendants’ failed second motion
to reopen the trial so that the Defendants might call Messrs. Doughtie and Nink
(not Finney) to testify as to an April 03 1992 letter as it relates to prior
disclosure and to adduce evidence of a memo by Mr. Bowden (the original
patentee) regarding early use of the invention. That motion did not mention Mr.
Finney.
[3]
The
trial was originally re-opened on the Defendants’ first motion to re-open because
of the discovery that Mr. Bates Sr. (the patent agent for Mr. Bowden) was alive
and still had his file concerning his dealings with Mr. Bowden (the Bates
file). The discovery of this evidence caused Mr. Bowden to have a different
recollection of events related to Mr. Bates than his evidence at trial. The
trial was therefore re-opened to allow the evidence of Mr. Bates, the
introduction of the Bates’ file into evidence and to permit Mr. Bowden to
correct his evidence.
[4]
Following
the Order re-opening the trial, the Court gave directions as to how it would
proceed with the Bates evidence including the taking of evidence in Texas from Mr.
Bates Sr. (who is ill) and Mr. Bowden.
[5]
The
Direction also stated:
To the extent that the Defendants wish to
introduce as new evidence the two letters referred to in their submissions of
May 6, 2011, independent of Mr. Bowden being recalled, it will require a motion
to re-open. To the extent that the letters are relevant to Mr. Bowden’s
re-opened evidence, it may be put to him in cross-examination and, if
necessary, his evidence may be rebutted by the Defendants.
(Underlining by Court)
[6]
At
this time, while the parties have an inkling of what Mr. Bowden will say, no
one is sure what that evidence will be – least of all the Court. Given the
twists and turns this case has taken, there is no guarantee what the Bates
evidence or the Bowden evidence will be.
[7]
Therefore,
the first problem with the Defendants’ motion is that it is premature. The
trial was not re-opened to allow a new canvassing of all the issues at trial
but rather, for the specific purpose of allowing in the Bates evidence and the
corrected testimony of Mr. Bowden. Evidence at the re-opened trial, including
rebuttal evidence, must be relevant in that it must be related to the purpose
of the re-opened trial.
[8]
The
Court is not prepared at this time to expand the order for commission evidence
until the new and corrected evidence is adduced and the issue of relevancy is
clear.
[9]
The
second problem, related to the first, is that while Mr. Finney is prepared to
appear voluntarily, it is not clear that his proposed evidence is relevant or
that it should be permitted at the re-opened trial. Mr. Finney is proposed to
be called to speak to documents which have already been entered in the trial
but for which Mr. Finney was not called to testify at the trial.
[10]
The
Defendants are not permitted to revisit its trial strategy under the guise of
calling rebuttal evidence at a trial which has been re-opened for a specific
and narrow purpose. It is not clear how Mr. Finney’s evidence (and what exactly
he will say is not known) could meet the relevancy test referred to earlier.
[11]
Until
the evidence of Bates and Bowden is received, what may be proper rebuttal
evidence will not be known.
[12]
The
final problem is that there is insufficient time to give effect to the Court’s
order, even if it was prepared to grant such an order. The reality is that it
is unlikely that a subpoena can be issued by the U.S. authorities
in sufficient time. Mr. Doughtie is unable to attend voluntarily because his
employer requires a subpoena.
[13]
For
these reasons, the Defendants’ motion is dismissed with costs.
ORDER
THIS COURT
ORDERS that the Defendants’ motion is dismissed with costs.
“Michael
L. Phelan”
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