Ericsson Communications Inc. et al. v. NovAtel Communications Ltd. et al., (1999) 88 O.T.C. 338 (GDM)

• Court: Ontario Court of Justice General Division (Canada)
• Case Date: February 11, 1999
• Jurisdiction: Ontario
• Citations: (1999), 88 O.T.C. 338 (GDM)

Ericsson Com. Inc. v. NovAtel Com. (1999), 88 O.T.C. 338 (GDM)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. MR.049

Ericsson Communications Inc., Ericsson Radio systems AB, Telefonaktiebolaget L.M. Ericsson and Ericsson Inc. (plaintiffs) v. NovAtel Communications Ltd. and 475342 Alberta Ltd. (defendants)

NovAtel Communications Ltd. and 475432 Alberta Ltd. (plaintiffs by counterclaim) v. Ericsson Communications Inc., Ericsson G.E. Mobile Communications Canada Inc., Rogers Cantel Inc. and Cantel Holdco Inc. (defendants by counterclaim)

(No. 92-CV-68656)

Indexed As: Ericsson Communications Inc. et al. v. NovAtel Communications Ltd. et al.

Ontario Court of Justice

General Division

Ottawa

Beaudoin, Master

February 11, 1999.

Summary:

Cantel purchased cellular telephone equipment from NovAtel, whose supplier was Ericsson, under diverse agreements that included a "supply agreement", a "back-to-back agreement", a "discount agreement" and a nondisclosure agreement relating to technical cooperation and information given to NovAtel. The Alberta Government, who owned NovAtel, divested it partly to 475342 Alberta Inc. and partly to Northern Telecom, a competitor of Ericsson's. NovAtel asked Ericsson and Cantel to consent to the assignment of the aforesaid agreements to 475342 Alberta Inc. They refused. Ericsson sought a declaration that NovAtel breached the agreements and that Ericsson was released from any of its obligations to pay any monies due thereunder. Ericsson also sued for damages for breach of fiduciary duties and as a result of misuse of confidential information. NovAtel counterclaimed, seeking damages pursuant to the very agreements that Ericsson sought to have declared frustrated. Discoveries took place. Ericsson moved for an order compelling NovAtel to produce a fully-informed person as a witness for discovery, answer undertakings and "respond to answers to questions posed at the discovery which questions were refused". NovAtel cross-moved for an order requiring Ericsson to answer outstanding and questions refused/taken under advisement at their examination for discovery, and an order fixing the date for the settlement conference of this action. The parties agreed to provide answers to undertakings and a date was fixed for the settlement conference.

A Master of the Ontario Court (General Division) dismissed Ericsson's motion for production of a further and better discovery witness. The Master issued orders respecting the answering of questions refused, undertakings and matters taken under advisement. The Master also adjudicated on a matter of waiver of privilege that arose when NovAtel's lawyers sent documents to the accounting firm that helped manage 475342 Alberta Inc. and was also Ericsson's auditor.

Practice - Topic 4234

Discovery - Examination - Persons who may be examined - Necessary persons - See paragraphs 8 to 14.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - See paragraphs 33 to 35.

Cases Noticed:

Air Canada v. McDonnell Douglas Corp. et al. ( 1995), 22 O.R.(3d) 140 (Master), consd. [para. 11].

Cineplex Odeon Corp. v. Canada (1994), 26 C.P.C.(3d) 109 (Ont. Gen. Div.), refd to. [para. 34].

Mutual Life Assurance Co. of Canada v. Canada (Deputy Attorney General) (1988), 28 C.P.C.(2d) 101 (Ont. H.C.), refd to. [para. 34].

Counsel:

Brian C. Elkin, for the plaintiffs/defendants by counterclaim;

John L. Finnigan, for the defendants/plaintiffs by counterclaim.

This motion and cross-motion were heard by Beaudoin, Master, of the Ontario Court (General Division), who released the following decision on February 11, 1999.