Imperial Oil Ltd. v. Lubrizol Corp.
A-535-94
McDonald J.A.
14/12/95
5 pp.
Appellant applying to admit sworn testimony of counsel for respondent-Trial Judge awarding $15 million in exemplary damages against Imperial Oil for deliberate, flagrant disregard of injunction restraining Imperial from selling additive-In fixing amount, Trial Judge citing Lubrizol's estimate of quantities of additives sold-Estimate of sales extrapolated from actual production for two months-Imperial alleging counsel for Lubrizol knew estimate untrue as not correlating with sales figures provided at informal meeting-Lubrizol expressly forbidden to use information given in litigation-Application dismissed- Imperial Oil not meeting test established in Alberta Wheat Pool v. Canada (Labour Relations Board) et al. (1992), 151 N.R. 1 (F.C.A.) for introduction of new evidence-Tactical decision not to introduce own sales data at trial-Cannot now try to indirectly introduce evidence concerning its sales-To allow evidence to be adduced in this manner would allow Imperial Oil to remake case with benefit of hindsight-Transcripts not supporting assertion Lubrizol's counsel attempting to mislead Court-No obligation on Lubrizol to reject own calculations and rely on unsworn material Imperial choosing to reveal at informal meeting rather than in Court-Trial Judge aware of Imperial's concerns about Lubrizol's estimate-Trying to do indirectly what not allowed to do directly-Federal Court Rules, C.R.C., c. 663, RR. 324, 332, 1102.