F.P. Bourgault Industries Air Seeder Division Ltd. v. Flexi-Coil
T-245-94
Giles A.S.P.
21/4/94
4 pp.
Defendant seeking order to examine two assignors of patent for discovery before filing defence and order for assignors to produce documents in advance of examination-Right to examine assignor found in Federal Court RR. 456(5) and 457-Purpose of discovery before defence to assist defendant in preparing defence by discovering case it has to meet; not intended to allow fishing for evidence grounds for defence-Knowledge of inventor/assignee matters preceding issue of patent-Presumption of validity of patent subsuming all matters preceding registration and removing from investigation all matters until validity raised in defence-Allowing assignors who are or were officers to be examined before defence would in effect allow examination of party before and after defence contrary to intent of R. 456(1)-R. 457(1) permitting discovery only after pleadings closed and examining party's affidavits of documents have been served-R. 466.3 limiting right to impose on non-party by permitting examination of potential witness only after all else has failed-Assignor sufficiently closer to assignee than usual witness contemplated by R. 466.3 and therefore may be subject to examination other than as last resort but should not be examined before scope of proceedings defined and limited by closing of pleadings-Court should not subject assignor merely potential witness to burden of having to make preparations required of those obliged to prepare list under R. 448-Federal Court Rules, C.R.C., c. 663, RR. 448, 456(1),(5), 457(1), 466.3.