Date: 20020509
Docket: A-831-00
Montréal, Quebec, May 9, 2002
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
PATIO DRUMMOND LTÉE
Appellant
and
DEK-BLOCK PRODUCTS LTD.
Respondent
JUDGMENT
The appeal is dismissed with costs.
"Alice Desjardins"
J.A.
Certified true translation
Sophie Debbané, LLB
Date: 20020509
Docket: A-831-00
Neutral citation: 2002 FCA 188
CORAM: DESJARDINS J.A.
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
PATIO DRUMMOND LTÉE
Appellant
and
DEK-BLOCK PRODUCTS LTD.
Respondent
Hearing held at Montréal, Quebec, on May 9, 2002.
Judgment delivered from the bench at Montréal, Quebec, on May 9, 2002.
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20020509
Docket: A-831-00
Neutral citation: 2002 FCA 188
CORAM: DESJARDINS J.A.
LÉTOURNEAUJ.A.
PELLETIERJ.A.
BETWEEN:
PATIO DRUMMOND LTÉE
Appellant
and
DEK-BLOCK PRODUCTS LTD.
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec,
on May 9, 2002.)
LÉTOURNEAUJ.A.
[1] The appellant is seeking to have the decision of the motion judge dismissing its motion for summary judgment set aside.
[2] The appellant relied primarily on a finding of fact made by the judge, contending that the judge failed to draw the conclusion of law that necessarily followed therefrom. The finding made by the judge reads as follows:
[50] Further, in cross-examination Mr. Hoffman confirms that he had independently arrived at a circular socket configuration before Patio Drummond but excluded the circular shape for the central socket at the development stage. He also confirms that he had not heard of Patio Drummond as of the date of the reissue.
[3] The appellant saw this finding as an admission against interest by the main witness. As a result, the decision requested, particularly that the respondent be reissued a patent and that claims 7, 8, 13, and 15 of that patent be declared null and void, could be made without the need to rely on its alternative argument based on allegations that the witness made false representations and therefore without raising any questions of credibility. The appellant submitted that it was therefore appropriate to grant summary judgment on the basis of the witness's admission.
[4] Counsel for the respondent objected to what he characterized as a new ground of attack that was not raised before the motions judge and that came up for the first time on appeal. Moreover, he submitted that if this new ground were accepted on appeal, the evidence in the record does not support the conclusion of law that the appellant seeks to draw from what was said by the motions judge.
[5] Even if it were assumed, without deciding this question, that this ground of attack had been raised before the motions judge, we are not satisfied that the factual information in the record that relates to that finding is sufficient for the issue to be disposed of by summary judgment.
[6] For these reasons, the appeal will be dismissed with costs.
"Gilles Létourneau"
J.A.
Certified true translation
Sophie Debbané, LLB
FEDERAL COURT OF APPEAL
Date: 20020509
Docket: A-831-00
Between:
PATIO DRUMMOND LTÉE
Appellant
and
DEK-BLOCK PRODUCTS LTD.
Respondent
REASONS FOR JUDGMENT OF THE COURT
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
COURT FILE NO.: A-831-00
Appeal from a judgment of the Trial Divison dated
December 15, 2000, in court file no. T-1001-99
STYLE OF CAUSE: PATIO DRUMMOND LTÉE
Appellant
and
DEK-BLOCK PRODUCTS LTD.
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 9, 2002
REASONS FOR JUDGMENT OF THE COURTBY:
LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
PELLETIER J.A.
DATE OF REASONS: May 9, 2002
APPEARANCES:
François Guay FOR THE APPELLANT
Ron Dimock/Bruce Stratton FOR THE RESPONDENT
SOLICITORS OF RECORD:
Smart & Biggar
Montréal, Quebec FOR THE APPELLANT
Dimock Stratton Clarizio
Toronto, Ontario FOR THE RESPONDENT