Federal Court Decisions

     Date : 19971007

     Docket : T-913-95

BETWEEN:

     PETROLITE CORPORATION, PETROLITE HOLDINGS INC.,

     PETROLITE CANADA, INC.,

     Plaintiffs,

     - and -

     CANWELL ENVIRO-INDUSTRIES LTD., CLIVE TITLEY, and

     THE CITY OF MEDICINE HAT,

     Defendants.

     REASONS FOR ORDER AND ORDER

McGILLIS, J.

[1]      At the outset of the hearing of the motion, counsel for the defendants advised the Court that the plaintiff had undertaken or agreed to answer the following:

i)      questions 1 to 52 inclusive in Schedule A to the notice of motion;

ii)      questions 56, 59 to 61 inclusive, 65, 66 to 75 inclusive, 77 to 80 inclusive, 82 to 84 inclusive, 86, 88, 89, 106, 116 and 117 in Schedule B to the notice of motion;

iii)      questions 1 to 9 inclusive in Schedule C to the notice of motion; and,

iv)      questions 14, 15 and 17 in Schedule D to the notice of motion.

     Counsel for the defendants further advised that he was withdrawing questions 53 to 55 inclusive in Schedule B and questions 10 to 13 inclusive in Schedule D.

[2]      During the course of argument, counsel for the plaintiffs undertook to provide answers to question 108 in Schedule B, and question 18 in Schedule D.

[3]      Having heard the able arguments of counsel for the parties, I have concluded as follows:

i)      questions 57, 58, 62, 63 and 64 in Schedule B concerning the agreement, if any, and its terms are relevant to the question of damages, particularly in relation to the question of a royalty rate;

ii)      question 76 in Schedule B is irrelevant on the basis that it seeks to elicit an opinion and interpretation of the wording of the patent;

iii)      question 81 in Schedule B concerning the source of document 73 is relevant to the issue of inventorship;

iv)      question 85 in Schedule B is relevant to matters pleaded concerning the validity of the patent;

v)      questions 87 and 100 to 104 inclusive in Schedule B concerning whether the early sales of W-3053 were experimental are relevant concerning the validity of the patent;

vi)      questions 90 to 99 inclusive in Schedule B are relevant to the issues of inventorship and the nature of the early sales of W-3053;

vii)      question 105 in Schedule B is relevant concerning the disclosure of prior art;

viii)      question 107 in Schedule B is privileged information;

ix)      questions 109 to 115 inclusive in Schedule B are relevant to the question of whether the plaintiff Petrolite Corporation has made an admission against interest in respect of a pleaded issue; and,

x)      question 16 in Schedule D is relevant concerning profits or damages.

[4]      IT IS ORDERED THAT the motion is granted in part.

[5]      Ralph Churchill, the representative of the plaintiffs Petrolite Corporation and Petrolite Holdings Inc. shall reattend at his own expense to answer the following outstanding questions arising from his earlier examination for discovery and any further questions arising therefrom:

questions 57, 58, 62, 63, 64, 81, 85, 87, 90 to 99 inclusive, 100 to 105 inclusive, and 109 to 115 inclusive.

[6]      Fred Hutchings, the representative of the plaintiff Petrolite Canada Inc. shall reattend at his own expense to answer the outstanding question 16 arising from his earlier examination for discovery and any further questions arising therefrom.

[7]      The undertakings made by counsel for the plaintiffs to answer various questions shall be complied with on or before November 7, 1997.

[8]      The costs of the motion are awarded to the defendants.

Judge

OTTAWA, ONTARIO

October 7, 1997