PRESENT: The Honourable Mr. Justice Hugessen
BETWEEN:
and
REASONS FOR ORDER
(Delivered from the Bench at
on August 29, 2007)
[1] I am going to dismiss this motion for summary judgment brought by the defendant.
[2] In my view there is clearly a genuine issue for trial in this case.
[3] The plaintiff holds a patent for a magnetically detectable cannula, apparently used in the meat packing industry, so as to detect broken hypodermic needles in meat which is being prepared for human consumption.
[4] The relevant claim is for a cannula composed in part of ferritic stainless steel.
[5] The defendant moving for summary judgment says that its cannula is made not of ferritic stainless steel but of duplex stainless steel.
[6] The plaintiff’s expert witness says that duplex stainless steel, is itself a composition, one of whose components is ferritic stainless steel, and that that component or “phase” as he calls it, is separately detectable by microscopic analysis of the final product.
[7] That opinion appears to be disagreed with by the defendant’s expert witness apparently basing himself on what he considers to be a definition of the words ferritic stainless steel in the disclosure.
[8] Whether or not he is right in that pretention I do not think it appropriate for me to comment.Equally I do not think it appropriate for me to comment on whether or not the plaintiff’s expert witness is correct.
[9] Clearly the two experts conflict.Both were cross-examined at some length.Neither resiled from his opinion.That seems to me is the classic circumstance in which the Court ought not to grant summary judgment and I would cite Trojan Technologies, Inc. v. Suntec Environment Inc. (2004) 31 C.P.R. (4th) 241 (F.C.A.) as a sufficient authority for that proposition.
[10] Accordingly the case must go to trial.
[11] The motion for summary judgment will be dismissed with costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1113-04
STYLE OF CAUSE: RIVARD INSTRUMENTS INC. v.
IDEAL INSTRUMENTS INC.
PLACE OF HEARING:
DATE OF HEARING: August 29, 2007
REASONS FOR ORDER: HUGESSEN J.
APPEARANCES:
Terrance J. McManus
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Scott Maidment
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SOLICITORS OF RECORD:
MILTON, GELLER LLP
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MCMILLAN BINCH MENDLESOHN LLP
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