Ottawa, Ontario, May 27,, 2010
Present: The Honourable Justice Martineau
[ENGLISH TRANSLATION]
BETWEEN:
Plaintiff / Defendant by counterclaim
and
CANADA LIMITED
Defendant / Plaintiff by counterclaim
REASONS FOR ORDER AND ORDER
[1] At the examinations for discovery of Mr. Bernard Certain, Mr. Pierre Prud’homme Lacroix and Mr. Joseph Mairou, conducted in France in September 2009 (the first round), Eurocopter objected to various questions and document requests expressed by Bell Helicopter Textron Canada Limited (Bell Helicopter).
[2] The proceedings are already being specially managed. On March 12, 2010, in exercising his discretion, Mr. Richard Morneau, the designated Prothonotary, decided nearly 200 objections, some in Eurocopter’s favour, others in Bell Helicopter’s favour (Eurocopter v. Bell Helicopter Textron Canada Ltd., 2010 FC 293). A second round of examinations for discovery was already held in April 2010. This appeal by Bell Helicopter pertains to roughly 40 objections from Eurocopter during the first round.
[3] The objections sustained by the Prothonotary and still in dispute today involve items 29 to 34, 39 to 47, 51 and 52, 146 to 150, 152 to 155, 159 and 160, 168, 170, 172 to 174, 176 and 177, 180 to 183, and 185 to 190 in the “Table Pertaining to the Defendant’s Motion”, attached to the Prothonotary’s order.
[4] At the hearing before the undersigned judge, the attorneys agreed that the content of the “Table Pertaining to the Defendant’s Motion” accurately reflects the position adopted by each party at the time the motion was filed in March 2010.
[5] For the purposes of this appeal, a “Summary Table of the Objections Subject to Bell Helicopter’s Appeal”, based on the table attached to the Prothonotary’s order, was prepared by Eurocopter’s attorneys. The parties did not claim that the latter document is confidential, and it is therefore reproduced in the annex (Table “A”).
[6] After reading the Prothonotary’s reasons, the proceedings, the affidavits, the transcriptions from the examinations, and after considering the parties’ written and oral submissions, this appeal must fail.
[7] For the following reasons, this is not a case in which the appeal judge has to exercise his own discretionary power de novo.
[8] In this case, I am not satisfied that the Prothonotary’s order is glaringly flawed (in the sense that the Prothonotary exercised his power under a wrong principle or a poor assessment of the facts) or that his order concerns questions that have a decisive influence over the outcome of the case.
[9] First, whether they are questions of a technical nature or arising out of the interpretation of the patent in dispute directed at the inventors and for which experts will be called upon to provide their opinion at the trial; questions relating to the marketing and implementation, by Eurocopter, of a helicopter landing gear assembly; questions regarding the date when Eurocopter learned about various parts and how that occurred; questions in connection with the damages and profits claimed by Eurocopter; questions regarding prosecution of the patent in dispute (including obtaining correspondence with the patent agents and the internal prosecution file); or other questions for which the Prothonotary sustained Eurocopter’s objections, Bell Helicopter has not satisfied me that the Prothonotary’s order involves questions that have a decisive influence over the outcome of the case.
[10] I would add that the sanction for non-communication of information and documents requested by one party and denied by the other party during an examination for discovery is well established. In this case, given the sustained objections involving the communicating of calculations, analyses or tests requested by Bell Helicopter (including items 29, 31, 32 and 34), at the trial, Eurocopter will be subsequently unable to put into evidence such calculations, analyses or tests to attempt to refute in defence any allegation from Bell Helicopter that certain claims from the patent in dispute are invalid (including because of failing to demonstrate the utility of the invention or to meet the requirements of the “sound prediction” rule).
[11] Second, unless the question is decisive for the outcome of the case, the appeal judge must not once again conduct a micro-analysis of each and every objection expressed by one party at an examination for discovery, unless the error supposedly committed by the Prothonotary and raised by the appellant, is glaring. In this case, there is no glaring error, and even if I am mistaken in that regard, there is no special or particular reason for me to exercise my discretion here de novo any differently than the designated Prothonotary did.
[12] The facts in this case and the applicable principles are well summarized by the Prothonotary. The decision appealed from is clearly based on the designated Prothonotary’s simple application of subsection 222(2) and sections 240 and 242 of the Federal Courts Rules, and other general principles already well defined in case law. Here, it cannot be said that the designated Prothonotary exercised his discretion based on an unreasonable assessment of the context in which the questions or document requests were expressed, since he had considerable discretion for assessing the relevance of a question or document request.
[13] It is obvious that both parties agree on the applicable principles, but not on the particular application of them by the Prothonotary in specific instances (grouped into different categories for the purpose of the awarding of the original motion for deciding the objections). Here, in addition to the general grounds in the decision appealed from, the Prothonotary indicated in the table accompanying his order, by means of double vertical lines║, which full or partial reasoning from the arguments of either party he was subscribing to with respect to sustaining or dismissing each objection. In this case, I am of the opinion that the arguments chosen by the Prothonotary provide a sound basis for sustaining Eurocopter’s objections, although I agree that another outcome could reasonably have been open to the Prothonotary if he had instead chosen to accept Bell Helicopter’s arguments.
[14] Assessing relevance is not an exact science; it all depends on the perspective that the decision-maker takes, and there is no one single field of vision. It is therefore appropriate to exercise restraint regarding matters of relevance, even though relevance is, technically, a legal issue: Létourneau v. Clearbrook Iron Works Ltd., 2005 FC 475 at paragraph 22. In this case, the designated case management Prothonotary is already in a very good position for determining whether or not it is reasonable to assume that a request for information or documents will directly or indirectly enable one party to plead its arguments or refute those of the other party. Also, in full agreement with what my colleagues Hugessen, Hughes and Tremblay-Lamer respectively wrote on the matter in Ruman v. Canada, 2005 FC 474, at paragraph 7, Astrazeneca Canada Inc. v. Apotex Inc., 2008 FC 1301, at paragraphs 9 to 23, and Galerie au Chocolat Inc. v. Orient Overseas Container Line Ltd., 2010 FC 327, at paragraphs 11 to 14, there is no need to start the case over from the beginning.
[15] Moreover, in rejecting Bell Helicopter’s arguments in the context of this appeal, we are forced to find that the particular reasons for sustaining the objections raised in paragraphs 23 to 44 of Eurocopter’s written submissions dated May 10, 2010 are, generally speaking, of a peremptory nature. This is sufficient for deciding this appeal, and it is not necessary to reiterate Eurocopter’s arguments in these reasons. Also, even though in a few isolated instances (items 29, 31, 32 and 34), I myself may have, at first glance, deemed some of Bell Helicopter’s questions or requests for documents relevant, that is not sufficient for allowing this appeal.
[16] It must be remembered that relevance is a matter of degree, varying greatly from one case to another. In short, if the spectrum of the question allowed depends on the progress of one party’s cause, the discretion exercised by the decision-maker will depend on the context and particular circumstances of the case. Here, I am not satisfied that the answers or documents requested by Bell Helicopter (including items 29, 31, 32 and 34) are essential for a fair decision to be made in this case. It is especially necessary to be sure to balance what must communicated with the impact, if any, that the requested information or document may have (Eli Lilly Canada Inc. v. Novopharm Ltd., 2008 FCA 287). Also, what I previously wrote at paragraph 10 above, regarding the consequences of Eurocopter’s objection to communication of the calculations, analyses or tests requested by Bell Helicopter, also weighs in favour of upholding the Prothonotary’s order.
[17] In any case, given that there have already been two rounds of examinations for discovery in France and that the trial must start in January 2011, which is in a few months, in exercising my discretion, I do not believe in this case that the cause of justice or the conduct of the proceedings for an out-of-court settlement or for the final decision of the dispute, will be favoured or best served by me superseding the Prothonotary today and ordering Eurocopter to answer or provide the documents requested by Bell Helicopter in its notice of motion for appeal (as amended by the letter from its attorney dated May 12, 2010).
[18] Having heard the attorneys’ submissions at the hearing regarding costs, this motion for appeal from Bell Helicopter is dismissed and costs are awarded in favour of Eurocopter.
ORDER
THE COURT ORDERS that Bell Helicopter’s motion for appeal be dismissed with costs in favour of Eurocopter.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-737-08
STYLE OF CAUSE: EUROCOPTER
and
BELL HELICOPTER TEXTRON CANADA LIMITED
PLACE OF HEARING: MONTREAL, QUEBEC
REASONS FOR JUDGMENT: MARTINEAU J.
APPEARANCES:
| Marek Nitoslowski
David Turgeon
|
FOR THE PLAINTIFF/
DEFENDANT BY COUNTERCLAIM
|
|
Judith Robinson
Louis Gratton
|
FOR THE DEFENDANT/PLAINTIFF BY COUNTERCLAIM
|
SOLICITORS OF RECORD:
| Fasken Martineau DuMoulin
LLP
Montreal, Quebec
|
FOR THE PLAINTIFF/
DEFENDANT BY COUNTERCLAIM
|
| Ogilvy Renault, LLP
Montreal, Quebec
|
FOR THE DEFENDANT/PLAINTIFF BY COUNTERCLAIM
|