Visx, Inc. v. Nidek Co.
T-195-94
Hugessen J.
11/6/98
7 pp.
Motions for (1) order to have issues of damages/profits determined by reference; (2) issuance of letters rogatory to effect examination for discovery of person alleged to have been inventor of patent-(1) In patent infringement action defendants raising issues of validity-Although several days of examination for discovery already taking place, several more days of examinations for discovery required on these topics alone-Governing principles set out in Depuy (Canada) Ltd. v. Joint Medical Products Corp. (1996), 67 C.P.R. (3d) 145 (F.C.A.)-Importance of reducing cost of trial, bringing matters on to trial as quickly as possible, which are paramount considerations in application of Federal Court Rules, 1998, making this appropriate case for granting of order for severance of trial-As Federal Court Rules, 1998 now in effect, order made pursuant to R. 107-R. 107 not envisaging reference, but separate determination by trial of separate issue-Issue of damages/profits to be tried separately-(2) Examination for discovery out of Canada governed by R. 90(2), providing that where person to be examined orally out of Canada, Court having broad discretion in setting terms, manner of examination-Defendant's right to examine assignor for discovery clearly set out in R. 237(4) and commission most appropriate manner of exercising right-Plaintiff also objecting to letters rogatory because Court's statutory framework not permitting it to give assurance of reciprocity to courts in New York, where person sought to be examined residing-Even if Court lacking power to issue subpoenas to enforce commissions issued out of foreign courts, courts in every province of Canada do have that power-Not important that Court itself able to reciprocate, but that some court in country where sits having that power-That is case with respect to commissions issuing out of courts in United States of America-Comity stemming from law of nations, not depending on jurisdiction of individual courts: Gulf Oil Corporation v. Gulf Canada Ltd. et al., [1980] 2 S.C.R. 39-In Richter Gedeon Vegyészeti Gyar Rt v. Merck & Co. et al, [1995] 3 F.C. 330 (C.A.), Court issuing commissions, letters rogatory for examination for discovery of inventors resident outside of Canada based upon predecessors of present RR. 90(2), 237(4)-Evidence commission if issued by Court will be given effect by at least one, more likely two courts in New York-Federal Court Rules, 1998, SOR/98-106, RR. 3, 90(2), 107, 237(4).