T-2982-80
George M. Standal and Standal's Patents Ltd.
(Plaintiffs)
v.
British Columbia Forest Products Limited and
Bow Valley Resource Services Ltd. (Defendants)
Trial Division, Mahoney J.—Ottawa, September
11 and 12, 1980.
Practice — Application for an order under Rule 477 that
individual plaintiffs evidence be taken on commission
Plaintiff has a terminal disease — Whether or not a party may
give evidence in his own behalf by commission — Application
allowed — Federal Court Rule 477(1).
Lemay v. Minister of National Revenue [1939] Ex.C.R.
248, overruled. Doyle v. Minister of National Revenue 78
DTC 6408, referred to.
APPLICATION.
COUNSEL:
David J. French for plaintiffs.
R. G. McClenahan, Q.C. for defendants.
SOLICITORS:
David J. French, Ottawa, for plaintiffs.
Gowling & Henderson, Ottawa, for defend
ants.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This is an action for patent
infringement commenced June 19, 1980. The
statement of claim was served and appearances
were filed in lieu of defence during long vacation.
The defences have yet to be filed. On August 26,
the plaintiff, George M. Standal, inventor and
owner of the patents in issue, underwent explorato
ry surgery and was diagnosed as suffering terminal
cancer of the pancreas. His life expectancy, by an
educated guess of his physician, is 6 weeks to 18
months. He is presently undergoing treatment and
should not leave his area of residence on Vancou-
ver Island. The corporate plaintiff is exclusive
licensee of the patents in issue. The plaintiffs apply
for an order under Rule 477 that Standal's evi
dence be taken on commission.
Rule 477(1) provides:
Rule 477. (1) 1f any party to any proceeding had or expected to
be had in the Court is desirous of having therein the evidence of
any person, whether a party or not, or whether resident within
or out of Canada, and if, in the opinion of the Court, it is,
owing to the absence, age or infirmity, or the distance of the
residence of such person from the place of trial, or the expense
of taking his evidence otherwise, or for any other reason
convenient so to do, the Court may, upon the application of
such party, order the examination of any such person, by
interrogatories or otherwise, before a judge nominated by the
Associate Chief Justice, a prothonotary, or any other person
named in the order, or may order the issue of a commission
under the seal of the Court for the examination. [The emphasis
is mine.]
The Court can infer, without proof of the nature
of the evidence sought to be adduced, that the
evidence of the inventor in an action for patent
infringement is probably of the sort that, other
conditions being met, warrants the making of the
order. If it were not for the decision of the Excheq
uer Court in Lemay v. M.N.R.,' I should think
that the order sought would be granted as a matter
of course. That decision, however, held expressly
that section 64 of the Exchequer Court Act, 2
which was identical, in its material provisions, to
the current Rule 477(1), did not provide for a
party giving evidence, in his own behalf, by
commission.
One might beg the question and distinguish the
Lemay case on the basis that there are, here, two
plaintiffs and that the corporate plaintiff is clearly
entitled to the benefit of the Rule to obtain the
inventor's evidence. However, in my view, the
Lemay case was wrongly decided. I note that the
rationale of the Lemay decision was not among the
reasons for refusal of such an order, in like circum
stances to Lemay, in Doyle v. M.N.R. 3
In the nature of patent infringement actions,
higher authority may well have the opportunity to
decide the question. Meanwhile, the order sought
will issue, subject, inter alia, to the defendants
[1939] Ex.C.R. 248.
2 R.S.C. 1927, c. 34.
3 78 DTC 6408.
having the opportunity, as they requested, to
examine Mr. Standal for discovery prior to the
taking of his evidence on commission. All ques
tions of costs will be reserved to the Trial Judge
except that the plaintiffs shall, forthwith, deposit
$5,000 as security for costs in this and two other
actions in which like orders will be made.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.