Sauve v. Santsar Industries Inc.
T-1607-96
Gibson J.
16/9/97
6 pp.
Appeals from orders (1) dismissing application for order issue of damages, profits be dealt with after issue of liability determined; (2) requiring defendant to deliver further, better affidavit of documents including all documents relating to revenues, profits from sale of infringing blocks-Defendant allegedly manufacturing, selling, distributing concrete blocks infringing individual plaintiff's industrial design-Plaintiff Sauve Builders Supplies, defendant, direct competitors in Essex County for manufacture, sale, distribution of concrete blocks-Appeals allowed-Upjohn Co. v. Apotex Inc. (1993), 53 C.P.R. (3d) 507 (F.C.T.D.) holding where prothonotary's order clearly wrong, reviewing judge charged with exercising own discretion, should be guided by principle order under R. 480 providing for reference after trial exceptional procedure, and in absence of compelling reasons bearing on conduct of action as whole, conventional procedures should be maintained-Protection of confidential information not of itself compelling reason bearing on conduct of action as whole-Such compelling reasons including reasons directed to minimization of expense of action-First order based solely on confidentiality not being good reason to divide action-Evidence indicating confidentiality only one of concerns-Associate Senior Prothonotary exercising discretion on basis of wrong principle or misapprehension of facts-Plaintiffs submitting forcing defendant to discovery on issues relating to profits, costs facilitating possibility of settlement which would work to minimize expense of action-Defendant submitting such disclosure only facilitating settlement by forcing it to either settle or do itself irreparable competitive harm through disclosure i.e. tending to bludgeon defendant into settlement based upon relatively unique features of market (limited number of sources of supply for major raw materials for concrete blocks by reason of weight and therefore limited economical transportability of materials, and limited geographical market for concrete blocks) in which defendant operating-Based on defendant's arguments, might conclude disclosure as required by orders minimizing expense of action by placing in hands of plaintiffs who operate competitively with defendants in relatively closed markets, potentially inordinate economic power-Such consideration compelling reason bearing on conduct of action as whole-On facts, compelling reason outweighing competing compelling reason of potential minimization of expense of action-Associate Senior Prothonotary erred in failing to grant motion to split trial between issues of liability, determination of damages-Federal Court Rules, C.R.C., c. 663, R. 480.