DRG Inc. v. Datafile Ltd. and Registrar of Copyrights, (1987) 14 F.T.R. 219 (TD)

• Judge: McNair, J.
• Court: Federal Court (Canada)
• Case Date: May 20, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 14 F.T.R. 219 (TD)

DRG Inc. v. Datafile Ltd. (1987), 14 F.T.R. 219 (TD)

MLB headnote and full text

DRG Inc. (applicant/appellant) v. Datafile Limited and the Registrar of Copyrights (respondents)

(No. T-1334-86)

Indexed As: DRG Inc. v. Datafile Ltd. and Registrar of Copyrights

Federal Court of Canada

Trial Division

McNair, J.

June 18, 1987.

Summary:

DRG Inc. commenced an action for copyright infringement and applied for leave to file a particular affidavit after time for doing so had expired. The Associate Senior Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion for leave without written reasons. DRG Inc. appealed.

The Federal Court of Canada, Trial Division, allowed the appeal and allowed DRG Inc. to file the affidavit, but with leave to the respondents to cross-examine on the affidavit.

Evidence - Topic 510

Presentation of - Rebuttal evidence - General principles - DRG Inc. commenced a copyright infringement action - The respondent filed the affidavits of two experts - DRG realized that it had no expert evidence and sought leave to file the affidavit of an expert after the normal time for filing had expired - The respondent argued that allowing the filing of the affidavit would be contrary to the rebuttal evidence rule - The Federal Court of Canada, Trial Division, rejected this argument - See paragraphs 23 to 27.

Practice - Topic 3680

Evidence - Affidavits - Use of - Leave to offer affidavit evidence - DRG Inc. commenced a copyright infringement action - The respondent filed the affidavits of two experts - DRG realizing that it had no expert evidence sought leave to file the affidavit of an expert after the normal time for filing had expired - The Federal Court of Canada, Trial Division, granted leave to file the affidavit, where the parties had not strictly followed the time periods set out in the rules when filing other items, there would be no great prejudice to the respondent and the respondent already had the affidavits of its expert in evidence.

Practice - Topic 5298

Trials - Trial de novo - When available - DRG Inc. applied for leave to file a particular affidavit in a copyright infringement action after the date for filing had expired - The Associate Senior Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion without written reasons - On appeal the Federal Court of Canada, Trial Division, stated that the appeal was not a de novo hearing, notwithstanding the lack of written reasons by the prothonotary - The court affirmed that on an appeal from a discriminatory order of a lower court, the Trial Division would not legally interfere unless it could be demonstrated that the lower court took an erroneous view of the facts or proceeded upon a wrong principle, unless the court was convinced that the decision represented a failure of justice - See paragraphs 5 to 7.

Practice - Topic 8817

Appeals - Duty of appellate court where trial judge fails to give reasons for judgment - [See Practice - Topic 5298 above].

Cases Noticed:

Richmond v. Can. Nat. Exhibition Assn. (1979), 11 C.P.C. 184; 104 D.L.R.(3d) 317 (Ont. H.C.), consd. [paras. 5, 6].

Wagman v. Blue Mountain Resorts (1984), 47 C.P.C. 53 (Ont. H.C.), refd to. [para. 5].

Teledyne Industries v. Lido Industrial Property (1978), 41 C.P.R.(2d) 60 (Ont. C.A.), appld. [para. 7].

Dart Industries Canada v. Algonquin Mercantile Corp. (1982), 66 C.P.R.(2d) 121 (F.C.A.), refd to. [para. 7].

Taylor v. Vancouver Gen'l Hospital, [1945] 4 D.L.R. 737 (B.C.C.A.), refd to. [para. 8].

Ethicon Inc. v. Cyanamid of Canada Inc. (1977), 35 C.P.R.(2d) 126, refd to. [paras. 9, 11, 17, 22].

Consumers Home Ltd. v. Consumers Distributing Co. Ltd. (1981), 58 C.P.R.(2d) 40, refd to. [para. 16].

Bell & Arkin v. Coronation Knitting Mills (1986), 10 C.P.R.(3d) 279, refd to. [para. 16].

Allcock Laight & Westwood v. Patton, [1967] 1 O.R. 18 (Ont. C.A.), refd to. [para. 24].

Mersey Paper Co. v. County of Queens (1959), 18 D.L.R.(2d) 19, consd. [para. 26].

Statutes Noticed:

Federal Court Rules, rule 702(3) [para. 12]; rule 703(3) [paras. 13, 20]; rule 704 [para. 1 et seq.]; rule 705 [paras. 15, 20, 22].

Authors and Works Noticed:

Phipson on Evidence (13th Ed.), paras. 33-92 [para. 24].

Sopinka and Lederman, The Law of Evidence in Civil Cases, pp. 517-519 [para. 24].

Wigmore on Evidence, vol. VI, s. 1873, p. 672 [para. 24].

Counsel:

R.S. Jolliffe, for the applicant.

F. Farfan, for the respondent, Datafile.

Solicitors of Record:

Gowling and Henderson, Toronto, Ontario, for the applicant.

MacBeth and Johnson, Toronto, Ontario, for the respondent, Datafile.

R. Kelly, Legal Branch, Hull, Quebec, for the respondent, Registrar.

This appeal was heard in Toronto, Ontario, on April 13 and 16, 1987, and on May 20, 1987, in Ottawa, Ontario, before McNair, J., of the Federal Court of Canada, Trial Division. The decision of McNair, J., was delivered on June 18, 1987: