T-166-80
Amfac Foods Inc. and McCain Foods Ltd.
(Plaintiffs)
v.
C. M. McLean Limited (Defendant)
Trial Division, Jerome A.C.J.—Toronto, March
17; Ottawa, March 20, 1980.
Practice — Application for order permitting plaintiffs to
inspect defendant's production operations — Whether or not
applicants satisfied Court of the need for an inspection —
Plaintiffs contended that inspection was necessary to determine
whether the pleadings should be amended, to identify the
issues with precision and to ensure the best evidence for trial
— Motion dismissed — Federal Court Rule 471 — Patent
Act, R.S.C. 1970, c. P-4, s. 59(1)(b).
MOTION.
COUNSEL:
R. Dimock for plaintiffs.
G. A. Macklin, Q.C. for defendant.
SOLICITORS:
Donald F. Sim, Q. C., Toronto, for plaintiffs.
Gowling & Henderson, Ottawa, for defend
ant.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This is an application by the
plaintiffs pursuant to Rule 471 of the Federal
Court Rules and section 59(1)(b) of the Patent
Act, R.S.C. 1970, c. P-4, as amended, for an order
permitting the plaintiffs to enter upon the manu
facturing premises of the defendant located in
New Annan, Prince Edward Island, to inspect and
examine the apparatus and processes used by the
defendant in the slicing of french fried or string
potatoes and to make and carry away any such
notes, records and photographs as well as a sample
of the said product and as may be deemed neces
sary for the purposes of this action.
The submission of counsel for the plaintiffs is
based on paragraph 8 of the statement of claim
that since the precise period and extent of the
defendant's use of the apparatus and method is not
entirely known to the plaintiffs, the plaintiffs
ought to have the benefit of the Court's discretion
and be permitted to conduct an inspection of the
defendant's production operations.
The defendant resists the application on two
grounds: first, that the material filed is inadequate,
more particularly that the only document filed by
the plaintiff is the affidavit of one Carl Morris,
who supports his own opinion about the defend
ant's operations by making reference to a letter
from James L. Martin to Mr. Harrison H.
McCain, Chairman of the Board of one of the
plaintiff companies, and that as a minimum an
affidavit ought to be filed by either Martin,
McCain, or both, so they will be subject to cross-
examination. Fortunately, I do not find it neces
sary to decide this interesting and contentious
point because the second ground of the defendant,
in my opinion, entitles him to succeed: i.e. that an
inspection ought to be permitted only when the
applicant satisfies 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 amendment to the
pleadings has been made, the statement of claim is
not under attack and there is no demand for
particulars. These objectives outlined by counsel
for the plaintiffs, in my opinion, properly form a
part of the discovery process and this order is
made without prejudice to the right of the plain
tiffs to re-apply for this inspection at a later stage
of the proceedings.
ORDER
This motion is dismissed with costs to the
defendant.
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