Date: 19980429
Docket: T-1064-97
MONTRÉAL, QUEBEC, THIS 29th DAY OF APRIL 1998
Present: RICHARD MORNEAU, PROTHONOTARY
Between:
GROUPE TREMCA INC.
and
JAGNA LIMITED,
Plaintiffs,
AND
TECHNO-BLOC INC.,
Defendant.
ORDER
The defendant's application is dismissed, costs in the cause.
Richard Morneau
Prothonotary
Certified true translation
C. Delon, LL.L.
Date: 19980429
Docket: T-1064-97
Between:
GROUPE TREMCA INC.
and
JAGNA LIMITED,
Plaintiffs,
AND
TECHNO-BLOC INC.,
Defendant.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This is an application by the defendant under Rule 332.1 of the Federal Court Rules (Rule 83 of the Federal Court Rules (1998)) asking the Court rule in its favour on the objections made by counsel for the plaintiffs at the examination of their representative, Angelo Risi.
Background
[2] Mr. Risi was examined on the affidavit he made in response to a motion by the defendant in which it asked this Court to declare counsel for the plaintiffs to be incompetent to represent the plaintiffs on the ground that the president of the defendant had in the past disclosed confidential information material to the case to the lawyers in question.
[3] It should be noted that in this case, the plaintiffs have brought action against the defendant for infringement of patent 1,182,295. That patent covers a block which is generally incorporated into retaining wall systems.
[4] In the past, the plaintiff has brought similar actions on at least three occasions against other corporations. In all those cases, the plaintiff has obtained judgments in its favour. In his examination, Mr. Risi admitted that those earlier cases involved settlement agreements, but for each of those agreements he refused to produce the text, whence the defendant's application.
Analysis
[5] The reason why the defendant is seeking those agreements is that it noted from reading Mr. Risi's affidavit that in the last and next to last paragraphs of his affidavit he referred to sums of money that the plaintiffs had allegedly had to invest in the past in defending the patent in issue. This is what Mr. Risi said in those paragraphs:
| 78. Both Groupe Tremca Inc., Michel Caron, personally, myself personally and the predecessor Corporations of Jagna Limited have spent a great deal of time and money defending the 295 patent over the last eight (8) years. We have spent several hundred thousands of dollars asserting our rights in the 295 patent in the Quebec market alone. I have travelled to Montreal from my Toronto area office to confide with Léger Robic Richard in these various matters at least ten (10) times in the last five (5) years, Mr. Caron has spent countless hours with counsel in our Quebec files. |
...
| 80. Mr. Léger and Mr. Sotiriadis have an excellent working relationship with both Mr. Caron and myself and we have the utmost confidence in them and their firm in regards to the litigation involving the 295 patent. The accumulated experience of Mr. Sotiriadis and Mr. Léger in respect of these matters comes from the hundreds of hours we have all spent together working on the different files, gathering evidence, obtaining expert opinion and so on. Therefore, it would represent a severe inconvenience for Groupe Tremca Inc. and Jagna to be obliged to start from scratch with new counsel after all the hard work and expense incurred developing our relationship with Léger Robic Richard and aiding in the increasing of their experience in respect of the 295 patent and the art to which it pertains. |
[6] According to counsel for the defendant, there is reason to believe that the plaintiffs knew what they were doing when they referred to the moneys they allegedly spent, apparently so that they could argue, in defence to the motion for removal, that this financial burden is an aspect that should militate in favour of their counsel being allowed to remain on the record.
[7] According to counsel for the defendant, again, it was admitted in the course of the examination of Mr. Risi that the agreements relating to the prior actions concerning the patent in question involved financial compensation being paid to the plaintiffs.
[8] Accordingly, in the defendant's view, it is relevant for it to be able to have access to those agreements, since the amounts set out therein might show that the plaintiffs have largely been compensated for the moneys they had to expend for the services of their counsel, and so the financial prejudice argument that the plaintiffs might want to make in order to keep their present counsel would fall.
[9] In his written submissions, counsel for the plaintiffs submitted that the purpose of Mr. Risi's affidavit was to explain the following results:
[translation]
| (i) the relationship between the plaintiffs and the firm of Léger, Robic, Richard; |
| (ii) the expertise acquired by Léger, Robic, Richard in respect of patent 295; |
| (iii) the expertise acquired by Léger, Robic, Richard in respect of the retaining block industry; |
| (v)(sic) the level of mutual trust that exists between the plaintiffs and their counsel; |
| (vi) the source of the expertise acquired by Léger, Robic, Richard. |
[10] He added, both orally in Court and in his written submissions (see paragraph 32) that it is these results that the plaintiffs will be arguing at the hearing on the merits of the defendant's motion, and that the references to the moneys expended had to be regarded simply as an expression of the means used by the plaintiffs to achieve those results.
[11] I cannot follow the defendant in its reading of Mr. Risi's affidavit. A reading of that affidavit in its entirety does not lead me to conclude that it is possible to imagine that the plaintiffs will be trying to rely primarily on the moneys expended in the past, as an argument in itself, in order to keep their counsel on the record.
[12] For the moment, I agree with the approach taken by the plaintiffs with respect to the purposes of Mr. Risi's affidavit. The five or so questions asked by counsel for the defendant therefore do not appear to be relevant, having regard to the principles respecting examinations on affidavits (Weight Watchers International Inc. v. Weight Watchers of Ontario Ltd. (No. 2) (1972), 6 C.P.R. (2d) 169, 172).
[13] Accordingly, this application is dismissed, costs in the cause.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
April 29, 1998
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
Court file no.: T-1064-97
BETWEEN
GROUPE TREMCA INC.
-and-
JAGNA LIMITED,
Plaintiffs,
" and "
TECHNO-BLOC INC.,
Defendant.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-1064-97
STYLE OF CAUSE: GROUPE TREMCA INC.
-and-
JAGNA LIMITED,
Plaintiffs,
AND
TECHNO-BLOC INC.
Defendants.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 27, 1998
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: April 29, 1998
APPEARANCES:
Jacques Léger and
Bob H. Sotiriadis for the plaintiffs
Jean Carrière for the defendant
SOLICITORS OF RECORD:
Jacques Léger and
Bob H. Sotiriadis for the plaintiffs
Léger Robic Richard
Montréal, Quebec
Jean Carrière for the defendant
Mendelsohn Rosentzveig Shacter
Montréal, Quebec