Judgments

Decision Information

Decision Content

T-2449-80
Sealed Air Corporation and Sealed Air of Canada, Ltd. (Plaintiffs)
v.
Alros Products Limited (Defendant)
Trial Division, Mahoney J.—Ottawa, June 17 and 18, 1980.
Practice — Motion for an order permitting inspection of methods and machines used by defendant in the manufacture of the alleged infringing material, and of records relevant thereto — Defendant had not filed a statement of defence, nor asked for particulars nor objected to sufficiency of plaintiffs' pleading — Application dismissed — Patent Act, R.S.C. 1970, c. P-4, s. 59(1)(b) — Federal Court Rule 471.
MOTION. COUNSEL:
J. Guy Potvin for plaintiffs.
I. Goldsmith, Q.C. for defendant.
SOLICITORS:
Scott & Aylen, Ottawa, for plaintiffs.
I. Goldsmith, Q.C., Toronto, for defendant.
The following are the reasons for order ren dered in English by
MAHONEY J.: This action for patent infringe ment was commenced by a statement of claim filed May 23, 1980. The plaintiffs now move, by notice of motion filed June 6, for an order, pursu ant to Rule 471 and paragraph 59(1)(b) of the Patent Act, R.S.C. 1970, c. P-4, permitting inspec tion of the methods and machines used by the defendant in the manufacture of the alleged infringing material and process and of records and documents relative thereto. They seek such order to obtain particulars for the purpose of pleading. The defendant has neither filed a statement of defence, asked for particulars nor objected to the sufficiency of the plaintiffs' pleading in any respect.
The relevant factual situation is identical to that recently considered by the Associate Chief Justice
in Amfac Foods Inc. v. C. M. McLean Limited,' in which he held [at page 72]:
... that an inspection ought to be permitted only when the applicant satisfied the Court of the need for it, that the plaintiffs have advanced no such grounds and in fact none exists. Indeed, in the material on file no need is suggested by the plaintiffs and during the course of reply, counsel for the plaintiffs could only contend that the inspection was necessary to determine whether an amendment to the statement of claim might be required, to identify the issues with precision and to ensure the best evidence for trial. No application for an amend ment to the pleadings has been made, the statement of claim is not under attack and there is no demand for particulars.
The plaintiffs rely on an even more recent order made by Mr. Justice Cattanach in Kuhlman Cor poration v. P. J. Wallbank Manufacturing Co. Limited. 2 There, the notice of motion by the plain tiff seeking an order for inspection was filed with the statement of claim or, perhaps, later the same day. However, the defendant moved to strike cer tain paragraphs of the statement of claim "on the ground that there have been no allegations of material facts from which it would follow that" the patents in issue had been infringed. That motion to strike was before the Court at the same sitting as the plaintiff's motion for inspection and Mr. Justice Cattanach dealt with both in the same reasons, dismissing the motion to strike and grant ing the inspection order.
The fact that, by the time the motion for an inspection order got before the Court, the state ment of claim in the Kuhlman case was under attack on a relevant basis distinguishes it from the Amfac situation and that which is presently before me. There is no present need for the order sought. The application will be dismissed without preju dice to the plaintiffs' right to re-apply at a later stage.
ORDER
The plaintiffs' application pursuant to Rule 471 and paragraph 59(1)(b) of the Patent Act is dis missed with costs but without prejudice to their right to re-apply at a later stage of the proceedings.
' Supra, at page 71. 2 [1981] 1 F.C. 639.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.