Lubrizol Corp. v. Imperial Oil Ltd.
T-577-87
Cullen J.
25/4/94
12 pp.
Application to determine scope of evidence applicant may put in on continuance -- After finding patent infringement, Cullen J. finding insufficient evidence to warrant award of exemplary damages for callous disregard of injunction prohibiting Imperial Oil from using patented product in its product -- Court of Appeal referring matter back to Cullen J. for continuance of trial on issue of exemplary damages -- Silent as to procedure to be followed on continuance -- Applicant arguing allegation of callous disregard for interlocutory injunction not pleaded -- Application dismissed -- Applicant not permitted to file new evidence -- Although statement of claim not expressly pleading callous disregard for injunction, sufficient to plead patent infringement by continuing activities beyond date of injunction -- Evidence, not pleadings, must establish beyond reasonable doubt callous disregard for injunction before Court awarding exemplary damages -- R. 420(2)(b), permitting amendments after trial, not warranting amendment to pleadings or allowance of new evidence to be submitted to reveal "real" facts -- Parties knew violation of injunction in issue at trial and no reason to believe real facts not already before Court -- Within Trial Judge's discretion as to whether continuance of trial, as ordered by Court of Appeal, necessitating further evidence or whether can be completed based on material as presented originally at trial, Court of Appeal having been silent on matter -- Imperial should not be given leave to introduce new material on continuance -- Issue in dispute on continuance before Court at trial, and evidence advanced to allow counsel to make submissions then and now -- But for Trial Judge's error, matter would have been concluded at Court of Appeal, with no new evidence as Imperial not seeking to introduce any new evidence at this stage -- Factors weighing against exercise of discretion under R. 494 including: some of documents previously sought by Lubrizol, but not produced by Imperial to Lubrizol's prejudice even though Lubrizol ultimately victorious; re-opening evidence stage unduly delaying fairly straightforward issue; manifestly unfair at this late date to allow Imperial to improve evidential position on issue previously agreed in Court; tactical decision not to produce documents previous to this must be abided by -- Evidence not recently discovered, but available at trial -- No mischaracterization of issue or principle of law from respondent's material -- Federal Court Act, R.S.C., 1985, c. F-7, s. 52 -- Federal Court Rules, C.R.C., c. 663, RR. 420, 494.