Digests

Autodata Ltd. v. Autodata Solutions Co.

T-20-04

2004 FC 1361, Tabib P.

4/10/04

9 pp.

In context of appeal under Trade-marks Act, s. 56, motions to compel production of additional portions of share purchase agreement, in answer to undertakings allegedly given in course of cross-examination on affidavit, and for special procedure for filing parties' respective records--Cross-examination on affidavit not examination for discovery--As affiant being cross-examined testifying as witness, not as representative of party, no obligation to better inform self, and examining party having no right to request witness to undertake to make inquiries, provide answers to questions --Nonetheless, party freely undertaking to provide further answers bound to honour engagement--To request to produce any existing licensing agreements, respondent replied no such documents--Answer presupposing acceptance of undertaking as requested--To request to provide particulars of deal to extent dealing with these issues, respondent reasserting confidentiality, and stating no transfer of goodwill or intellectual property between companies--Such response more of substantive answer than refusal--Undertakings given, answers provided--Undertaking limited to that which respondent agreed to provide--As respondent having complete discretion as to whether to give requested undertaking, cannot be held to have undertaken any more than what it unequivocally agreed to, so long as interpretation it gave to request reasonably supportable-- Applicant submitting not required to accept respondent's "bald" assertions in response to undertaking, that entitled to test assertions--Such is language of discovery--Cross-examination on affidavit not discovery, application not action --As application meant to proceed expeditiously, discoveries not contemplated in applications--Parties cannot expect summary process mandated for applications will permit them to test every detail of every statement made in affidavits or in cross-examinations against every document in opposing party's possession--If not required to accept witness's bald assertion in cross-examination, limited in endeavours to test assertion and witness's answers in course of cross-examination--Production of documents may only be enforced if listed or sufficiently identified in direction to attend duly served pursuant to Federal Court Rules, 1998, r. 91(2)(c)-- Cross-examination on affidavit direct testimonial evidence of witness, not discovery of party--Cross-examination on affidavit should be approached with same circumspection as any cross-examination so as not to invite "bald" assertions, and be left having to attack witness's credibility or weight to be given to testimony as sole means of countering assertion-- Party requesting answer by way of undertaking to make up for witness's lack of knowledge or reliance on documents not duly produced, does so at own peril --Unless specific agreement to adjourn cross-examination pending completion of undertakings, or that answers given to undertakings so clearly, demonstrably at odds with evidentiary record that equate to refusal or misconduct, no mechanism in Rules to re-open cross-examination to seek further production or put follow-up questions to witness-- Nothing in answers herein can be construed as refusal or misconduct--Applicant submitting respondent intending to raise additional issues in its record than those raised by applicant, to which applicant would not have opportunity to reply--Submitting Court required to craft different mode of procedure whereby joint record filed to which parties filing memoranda of fact and law in reply, with applicant having opportunity to file submissions in reply to respondent's issues--Respondent objecting to such order--Circumstances neither unique nor unanticipated by Rules--R. 300(d) specifically providing appeals under s. 56 to be governed by rules applicable to all applications--S. 56 clearly contemplating appeal, rather than judicial review of decision; additional evidence not before Registrar may be adduced on appeal; Court on appeal may exercise any discretion vested in Registrar--Clearly open to respondent to raise issues other than those raised by applicant-- Circumstances not justifying departure from established rules of procedure--Federal Court Rules, 1998, SOR/98-106, rr. 91(2)(c), 300(d)--Trade-marks Act, R.S.C., 1985, c. T-13, s. 56.