Chic Optic Inc. et al. v. Fuji Optical Co. et al., (1999) 180 F.T.R. 6 (TD)

• Court: Federal Court (Canada)
• Case Date: October 22, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 180 F.T.R. 6 (TD)

Chic Optic Inc. v. Fuji Optical Co. (1999), 180 F.T.R. 6 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. DE.039

Chic Optic Inc., Contour Optik Inc. (plaintiffs) v. Fuji Optical Co. Ltd., Eighty-Eight Optical Ltd., Zellers Vision Centre, Mr. Toni Geha, Mr. Gilles Bourgeois, Picabo Importation Inc., Denis Dupont, Tri-Minh Huynh, Thomas A. Marer Opticians Inc., doing business as Marervision, The Frame Club, Dieter Saxer, Strozzi's Eyewear and Gallery Ltd., John Doe, Jane Doe and all Others Unknown to Plaintiffs who are Infringing on the Patent Described Herein (defendants)

(T-1391-98)

Indexed As: Chic Optic Inc. et al. v. Fuji Optical Co. et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

October 22, 1999.

Summary:

Plaintiffs applied to remove an affidavit from the court's file so that they could obtain expert opinion on a box of eye-glass frames filed with the affidavit as an exhibit.

A Prothonotary of the Federal Court of Canada, Trial Division, refused to remove the affidavit as a whole, but granted the plaintiffs temporary custody of the exhibit and directed the plaintiffs to make reason­able accommodations for any request by the defendants to access it. The court ordered the plaintiffs to forthwith return the exhibit to the court on the conclusion of the exam­ination by the expert, but in any event at least two clear days before any summary judgment application or other application to the court to decide the action on its merits.

Courts - Topic 1450

Administration - Documents filed by parties - Return of documents to parties - Plaintiffs applied to remove an affidavit from the court's file so that they could obtain expert opinion on a box of eye-glass frames filed with the affidavit as an exhibit - A Prothonotary of the Federal Court of Canada, Trial Division, noted that the motion was not opposed, but stated that even on consent there had to be justi­fica­tion for the removal of documents - Fur­ther the court had inherent control over its own records and could permit removal of particular material in which a party had a proprietary interest - The Prothonotary held that there was no valid reason to remove the affidavit as a whole, where the affidavit and exhibit were public docu­ments and the litigation was ongoing - However, the Prothonotary granted the plaintiffs temporary custody of the exhibit with directions for its return to the court.

Practice - Topic 3565

Evidence - Exhibits - Return of - [See Courts - Topic 1450 ].

Cases Noticed:

McCleery v. Commissioner of the Royal Canadian Mounted Police (No. 2), [1974] 2 F.C. 361; 5 N.R. 237 (F.C.A.), refd to. [para. 2].

Counsel:

Warren Milman, for the plaintiffs;

Dieter Saxter, for the defendants.

Solicitors of Record:

McCarthy Tetrault, Vancouver, British Columbia, for the plaintiffs.

This motion was dealt with in writing by Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following reasons for order on October 22, 1999.