Perini America Inc. v. Alberto Consani North America Inc.
T-2334-91
Rothstein J.
6/10/92
16 pp.
Interlocutory application for orders directing defendant Metro Paper Industries to file defence within 30 days, restraining latter from removing paper rewinding machine from place of business and jurisdiction, or permitting plaintiffs to inspect, test machine prior to removal -- Whether Court should grant plaintiffs' request for preservation of Gemini II paper rewinding machine under R. 470 -- Plaintiffs alleging machine installed at Metro infringes Perini America's patent -- Tests under R. 470 similar to those for granting interlocutory injunctions -- Case law reviewed -- Threshold of "serious question to be tried" appropriate standard in intellectual property cases -- Test requiring plaintiffs to demonstrate serious question to be tried in relation to substantive action, not in relation to procedural application under R. 470 -- Evidence supporting patent infringement claim -- First threshold test of serious issue to be tried met by plaintiffs -- Whether damages to plaintiff adequate remedy -- Failure to grant preservation order could result in irreparable harm to plaintiffs -- Evidence of irreparable harm must be clear, not speculative -- Without evidence offered by Metro, benefit of doubt to plaintiffs -- Evidence clear, not speculative, sufficient to meet requirements for interlocutory injunctions -- R. 470 application only way to ensure effectiveness of order if inspection order granted at discovery stage -- Machine will be dismantled without preservation order -- Plaintiffs having done all they could do-Damages not adequate remedy without order under R. 470-Preservation order not tantamount to injunction preventing Consani defendants from conducting business activities -- Order not directed to Consani defendants, but to Metro to ensure machine not dismantled or disposed of -- Damages to defendants adequate remedy -- Evidence of Consani defendants showing no material inconvenience from granting of order[cad 211]Plaintiffs having done as much as they could to demonstrate irreparable harm if preservation order not granted -- Balance of convenience favouring plaintiffs -- R. 470(5) not bar to preservation order for purposes sought herein -- "Pending suit" covering period prior to or during lawsuit -- Application within purpose specified in R. 470(5) -- Order granted on terms -- Federal Court Rules, C.R.C., c. 663, R. 470.