Date: 19981120
Docket: A-313-98
CORAM: STONE J.A.
McDONALD J.A.
SEXTON J.A.
BETWEEN:
| NIDEK CO., LTD. |
Appellant
(Defendant)
- and -
| VISX INCORPORATED |
Respondent
(Plaintiff)
Heard at Toronto, Ontario, Friday, November 20, 1998
Judgment delivered from the bench at Toronto, Ontario, Friday, November 20, 1998.
REASONS FOR JUDGMENT BY: SEXTON J.A.
Date: 19981120
Docket: A-313-98
CORAM: STONE J.A.
McDONALD J.A.
SEXTON J.A.
BETWEEN:
| NIDEK CO., LTD. |
Appellant
(Defendant)
- and -
| VISX INCORPORATED |
Respondent
(Plaintiff)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, Friday, November 20, 1998)
SEXTON J.A.
[1] This appeal arises in the course of lengthy interlocutory proceedings in a patent action which was commenced more than four years ago. The appellant appeals from an order refusing the right to amend its statement of defence and counterclaim. It should be noted that the defendant has already amended its statement of defence on at least five different occasions. We believe that the appellant has had ample chance to present its pleading and we deplore the delay which has resulted. Nevertheless we must have regard to Meyer v. Canada (1986), 62 N.R. 70 (F.C.A.), at page 72, in which this Court approved the following statement from Steward v. North Metropolitan Tramways Co. (1886), 16 Q.B.D. 556:
| The rule of conduct of the Court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed, if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made. |
This case was quoted with approval by this Court in Minister of National Revenue v. Canderel Ltd. (1983), 157 N.R. 390 (F.C.A.).
[2] We therefore allow the amendment requested as set forth in the red lined version of the fifth Amended Statement of Defence and Counterclaim filed September 26, 1997 which will be attached to the order of this Court.
[3] We impose the following terms:
| 1. The respondent shall have the right to further discovery with respect to these amendments; |
| 2. The appellant shall have the right to further discovery with respect to the amendments but the appellant shall pay the costs thereof; |
| 3. The appellant shall bring a witness to Toronto for discovery by the respondent with respect to these amendments at the appellant's expense; |
| 4. The costs of these further discoveries shall be costs to the respondent in any event of the cause; |
| 5. The costs of this appeal shall be to the respondent in any event of the cause; |
| 6. The costs thrown away as a result of these amendments shall be to the respondent in any event of the cause. |
[4] The second issue in the appeal related to whether certain questions on discovery should be answered. The questions were held by the Learned Motions Judge to be improper. We were advised at the opening of the appeal that these matters had been resolved. We compliment counsel on this, but add that it would have been more helpful if the resolution had occurred much earlier.
[5] We cannot help but notice that the plethora of interlocutory proceedings in this matter has prevented it proceeding to trial in a reasonable time. We feel that many of these proceedings have been unnecessary and would urge counsel to focus on the interest of their clients by seeking a final resolution of the issues in this case either by proceeding to trial or by settlement
"J. Edgar Sexton"
J.A..