Digests

Practice

Discovery

Examination for Discovery

Appeals from Federal Court orders (2009 FC 1141, 2009 FC 1142) allowing in part appeals of respondent (Eurocopter) of prothonotary’s orders—Prothonotary allowing objections of appellant (Bell Helicopter Textron Canada Limited) to certain questions asked during examination for discovery of appellant’s representative—Appeal made in context of respondent’s action for infringement against appellant—Very purpose of examination for discovery (to render trial process fairer, more efficient) weighing in favour of flexibility in examination, production of documents—In first file (A‑466‑09), prothonotary deciding questions forced witness to express opinion (expert opinion, witness’ interpretation of patent, beliefs)—Interpretation, scope of patent for trial judge to decide, as could benefit from expert opinions—Prothonotary correct in sustaining objections; Federal Court made error of law in overturning prothonotary’s decision—However, Federal Court correct to intervene in questions 17, 18, 19 in file A‑466‑09—Those questions relevant—Regarding questions relating to documents provided to Transport Canada, appellant’s internal documents (files A‑466‑09, A‑467‑09), Federal Court correct in deciding those documents would directly, indirectly enable respondent to advance own case, damage case of adversary—Up to trial judge to establish appropriate degree of relevance to apply to documents considering all evidence—Appeal allowed in part (file A‑466‑09); appeal dismissed (file A‑467‑09).

Eurocopter v. Bell Helicopter Textron Canada Limited (A‑466‑09, A‑467‑09, 2010 FCA 142, Blais C.J., judgment dated June 8, 2010, 9 pp.)