PRACTICE |
Judgments and Orders |
Reversal or Variation |
Imperial Oil Ltd. v. Lubrizol Corp.
T-577-87
Nadon J.
12/6/00
96 pp.
In context of patent infringement action, plaintiff brings motion pursuant to former Federal Court Rules, R. 1733 to set aside September 17, 1990 judgment of this Court (Lubrizol Corp. v. Imperial Oil Ltd. (1990), 39 F.T.R. 161), upheld by Court of Appeal ((1992), 45 C.P.R. (3d) 449), on basis order obtained by fraud of expert witness and defendants--Patent for invention of dispersement molecules forming part of additives to lubricating oils for engines--Prior judgment of Court will only be set aside in clearest of cases, otherwise, finality of judgments would be imperilled: Saywack v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 189 (C.A.)--Party must establish false representation has in fact been made, and that false representation made either knowingly, without honest belief in its truth, or recklessly, careless of whether true or false--Fraud must also be material, i.e. must go to foundation of case: 100 Main Street East Ltd. v. Sakas (1975), 8 O.R. (2d) 385 (C.A.)--Motion dismissed--No evidence to support Imperial's allegations of fraud against Lubrizol, nor in regard to allegations made against outside counsel for Lubrizol and general counsel for Lubrizol--No mandate given by Lubrizol to expert witness to falsely testify--On evidence, expert witness never intended to mislead Court--Matter of imperfect recollection, true belief--Plaintiff has not demonstrated fraud or recklessness on part of defendants' expert witness--Furthermore, plaintiff's expert witness lacked credibility--Federal Court Rules, C.R.C., c. 663, R. 1733.