T-577-87
B E T W E E N:
THE LUBRIZOL CORPORATION and
LUBRIZOL CANADA LIMITED
Plaintiffs,
- and -
IMPERIAL OIL LIMITED and
its subdivision PARAMINS
Defendant.
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
The answers to the questions considered today in Schedule B, group 2 were argued to be relevant to a possible attempt to measure profits attributable to the infringement by comparison with profits made with alternative non-infringing products. I note that there are cases decided in the United States where it was decided to allow a comparison with a theoretical alternative when no actual comparison was available.
In the English case of Siddel v. Vickers (1892), 9 R.P.C. 152, it was held that the comparison for the purposes of determining profit should be with the method that the defendant would have used rather than with a possible other alternative available at the time. I find it therefore relevant to ask questions such as 491 to 4795 and 4827 to 4829 which are relevant to what the defendant would actually have used in the alternative. At the same time, I find it relevant to seek answers to questions which would be relevant in determining what alternative dispersants the defendant might have used to cover the possibility that the judge acting as referee may find the American precedents applicable. The answers to questions 4830 and 4831 might be helpful in this regard as might the earlier questions. It was pointed out to me that the alternatives exhibited were alternative additives of which a dispersant is but apart. To find information with which to calculate profits from use of alternative dispersants it may be necessary to start by comparing alternative additives containing different dispersants. It will therefore be ordered that all the questions in Schedule B, group 2 be answered.
ORDER
All the questions in Schedule B, group 2 are to be answered. The defendant is to use its best efforts to produce these answers by October 15th, 1997. The remaining questions referred to in the Notice of Motion are to be included in the consent Order to be drafted by counsel. Costs of today to the plaintiff in the cause.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
August 21, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-577-87
STYLE OF CAUSE: THE LUBRIZOL CORPORATION and
LUBRIZOL CANADA LIMITED
- and -
IMPERIAL OIL LIMITED and
its subdivision PARAMINS
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: AUGUST 21, 1997
SOLICITORS OF RECORD:
Mr. Peter E.J. Wells
RIDOUT & MAYBEE
Barristers & Solicitors
1 Queen St. East
Suite 2400
Toronto, Ontario
M5L 3B1
Solicitor for the Plaintiffs
Mr. William H. Richardson
McCARTHY, TETRAULT
4700 T.D. Bank Tower
P.O. Box 48, Stn. Toronto Dominion
Toronto Dominion Centre
Toronto, Ontario
M5L 1A9
Solicitor for the Defendant
FEDERAL COURT OF CANADA
Court No.: T-577-87
Between:
THE LUBRIZOL CORPORATION and
LUBRIZOL CANADA LIMITED
Plaintiffs,
- and -
IMPERIAL OIL LIMITED and
its subdivision PARAMINS
Defendant.
REASONS FOR ORDER AND ORDER