Date: 19991110
Docket: T-1154-95
MONTRÉAL, QUEBEC, NOVEMBER 10, 1999
BEFORE: RICHARD MORNEAU, PROTHONOTARY
Between:
BARRIER SYSTEMS INC.,
Plaintiff,
AND
GILLES RICHER, SIGNALISATION LASM INC.,
9015-2539 QUÉBEC INC.,
LACROIX INDUSTRIES, RICHARD BOURDON,
2842-6351 QUÉBEC INC. DOING BUSINESS
UNDER THE NAME SIGNALISATION LAURENTIENNE,
MOLE CONSTRUCTION INC., JOHN DOE,
JANE DOE and DOE CORPORATION,
Defendants.
Motion by the plaintiff asking that:
| (A) AN ORDER BE MADE pursuant to Rules 96(2) and 97 of the Federal Court Rules (1998), directing the defendants Robert Bourdon and Gilles Richer to appear at their own cost at 9 a.m. on September 1, 1999 at the offices of Smart & Biggar, located at 1000 Rue de la Gauchetière ouest, bureau 3400, city of Montréal, province of Quebec, or at any other place and/or time the Court shall direct, to: |
| (1) answer questions Nos. 9 and 29 asked in the examination for discovery of Robert Bourdon on June 22, 1999 as to which objections were raised; |
| (2) answer questions Nos. 11, 12, 13, 14, 15, 16, 20, 26, 37, 51 and 52 asked in the examination for discovery of Gilles Richer on June 22, 1999, as to which objections were raised; |
| (3) answer any question arising out of the answers that shall be given to the aforementioned questions; |
| (4) answer any further question of the plaintiff regarding: |
| (i) the personal involvement of Robert Bourdon and Gilles Richer, especially since January 9, 1997, in the infringing activities in respect of the patent at issue; |
| (ii) the infringing machine currently in Robert Bourdon"s yard; |
| (iii) the documents alleged in the parties" affidavits of documents; |
| (B) AN ORDER BE MADE pursuant to Rule 53 of the Federal Court Rules (1998) directing that continuance of the examinations for discovery of the defendants Robert Bourdon and Gilles Richer dated September 1, 1999 be conducted before Richard Morneau, prothonotary, who was assigned to this matter to facilitate its disposition, in accordance with the order of Honourable Associate Chief Justice Richard of April 6, 1999; |
| (C) AN ORDER BE MADE directing the defendants Robert Bourdon and Gilles Richer to pay the plaintiff the following amounts; |
| (1) $14,949.50, corresponding to the costs of the instant motion pursuant to Rule 96(3) of the Federal Court Rules (1998), on a solicitor-client basis in accordance with Rule 400(6)(c) of the Federal Court Rules (1998); |
| (2) $6,012.10, corresponding to the out-of-court costs and disbursements incurred by the plaintiff in the preparation and the conduct of the examinations for discovery of the defendants Robert Bourdon and Gilles Richer dated June 22, 1999, in accordance with Rules 97(e) and 400(6) of the Federal Court Rules (1998); |
| immediately upon the granting of this motion in accordance with Rule 401(2) of the Federal Court Rules (1998); |
| (D) AN ORDER BE MADE pursuant to Rule 8 of the Federal Court Rules (1998) extending as follows the deadlines imposed in the order of March 4, 1999 by Richard Morneau, prothonotary, further to a notice of status review: |
| (1) to complete the examinations for discovery under Rule 234 by October 1, 1999 at the latest; |
| (2) proceed with a settlement discussion under Rule 257 by December 1, 1999 at the latest; |
| (3) serve and file a pre-trial conference application under Rule 258 by January 6, 2000 at the latest. |
| (E) ANY FURTHER ORDER BE MADE which this Court shall consider useful and appropriate in the circumstances. |
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] After hearing the instant motion, the following orders must be made.
[2] The defendants Robert Bourdon and Gilles Richer shall attend at their own cost on December 7, 1999 (or any other date on which the parties may agree) at the offices of Smart & Biggar, located at 1000 Rue de la Gauchetière ouest, bureau 3400, city of Montréal, province of Quebec, to:
| (a) answer questions Nos. 9 and 29 asked in the examination for discovery of Robert Bourdon on June 22, 1999 and also answer questions Nos. 15, 16, 20, 26, 37, 51 and 52 asked in the examination for discovery of Gilles Richer on June 22, 1999: all these questions are in my opinion relevant within the meaning of the Rules and precedents of this Court; for the moment, questions 11 to 14 are much too wide: they may be asked again if their scope is limited to what is really relevant; |
| (b) answer any question arising out of the answers that shall be given to the aforementioned questions; |
| (c) answer any further question by the plaintiff regarding: |
| (i) the personal involvement of Robert Bourdon and Gilles Richer, especially since January 9, 1999, in the infringing activities relating to the patent at issue; |
| (ii) the infringing machine which is now in Robert Bourdon"s yard; |
| (iii) the documents alleged in the parties" affidavits of documents. |
[3] I do not consider that any order should be made under Rule 53 of the Federal Court Rules (1998) that the examinations for discovery of the defendants Robert Bourdon and Gilles Richer should be conducted before me. Those parties and their counsel shall see to it that these examinations proceed in accordance with the applicable Rules and customs. Rules 96 and 97 are available and may again be used if necessary.
[4] In accordance with Rule 8, the deadlines imposed in the order by this Court on March 4, 1999 are extended as follows:
| (a) the examinations for discovery under Rule 234 shall be completed by December 17, 1999 at the latest; |
| (b) a settlement discussion under Rule 257 shall be held by January 7, 2000 at the latest; |
| (c) a pre-trial conference application under Rule 258 shall be served and filed by the plaintiff by February 1, 2000 at the latest. |
[5] The Court must also conclude, based on consideration of the uncontradicted evidence to this effect submitted by the plaintiff, that the interruption of the examinations of the defendants Bourdon and Richer and the filing of the instant motion are direct consequences of the repeated actions by counsel for those defendants and the inadmissible conduct of the defendant Richer at his examination. It must penalize such a result.
[6] Accordingly, under Rules 400(1) and (3)(i) and 401 it must order the defendants Bourdon and Richer to pay the sum of $4,500 in costs. Since certain objections by the defendants were justified (questions 11 to 14), there is no basis here for applying s. 401(2) of the Rules. Apart from the indications just mentioned, the plaintiff"s motion is dismissed as to costs.
| Richard Morneau Prothonotary |
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE No.: T-1154-95 |
| STYLE OF CAUSE: BARRIER SYSTEMS INC., |
Plaintiff,
AND
| GILLES RICHER, SIGNALISATION LASM INC., 9015-2539 QUÉBEC INC., LACROIX INDUSTRIES, RICHARD BOURDON, 2842-6351 QUÉBEC INC. DOING BUSINESS UNDER THE NAME SIGNALISATION LAURENTIENNE, MOLE CONSTRUCTION INC., JOHN DOE, JANE DOE and DOE CORPORATION, |
Defendants.
PLACE OF HEARING: Montréal, Quebec
| DATE OF HEARING: November 8, 1999 |
DATE OF REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
APPEARANCES:
| François Guay for the plaintiff |
Marc-André Huot
| Pierre Mercille for the defendants |
SOLICITORS OF RECORD:
Smart & Biggar for the plaintiff
François Guay
Marc-André Huot
Montréal, Quebec
| de Grandpré, Godin for the defendants |
Pierre Mercille
Montréal, Quebec