Garford Pty. Ltd. v. Dywidag Systems International Canada Ltd. et al., (2010) 406 N.R. 308 (FCA)

• Judge: Nadon, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 08, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 406 N.R. 308 (FCA);2010 FCA 223

Garford Pty. Ltd. v. Dywidag Systems (2010), 406 N.R. 308 (FCA)

MLB headnote and full text

Temp. Cite: [2010] N.R. TBEd. SE.011

Dywidag Systems International, Canada, Ltd. (appellant) v. Garford Pty Ltd. (respondent)

(A-220-10; 2010 FCA 223)

Indexed As: Garford Pty. Ltd. v. Dywidag Systems International Canada Ltd. et al.

Federal Court of Appeal

Nadon, J.A.

September 8, 2010.

Summary:

A Prothonotary allowed a motion to bifurcate the issue of liability from the issues of damages or accounting for profits in the plaintiff's copyright infringement action. The plaintiff appealed.

The Federal Court, in a decision reported at [2010] F.T.R. Uned. 378, allowed the appeal. The defendant appealed. The plaintiff moved for an order determining the contents of the Appeal Book (the affidavit and cross-examination transcript of Belmore).

The Federal Court of Appeal allowed the motion and ordered that the affidavit and cross-examination transcript be excluded from the Appeal Book.

Practice - Topic 9455

Appeals - Factum, case on appeal or appeal book - Content of - A prothonotary allowed a motion to bifurcate the issue of liability from the issues of damages or accounting for profits in the plaintiff's copyright infringement action - The plaintiff appealed - Zinn, J., allowed the appeal - The defendant appealed - The plaintiff moved for an order determining the contents of the Appeal Book - It argued that an affidavit by Belmore, a prominent intellectual property litigation lawyer, which provided an opinion as to whether the proceedings should be bifurcated, and a transcript of his cross-examination, should not be included - Those documents were excluded from the record by the prothonotary - The defendant argued that the documents should be included in the Appeal Book because that evidence was in the record before Zinn, J. - The Federal Court of Appeal ordered that the documents be excluded from the Appeal Book - Belmore's expert opinion was irrelevant since it was up to the prothonotary and Zinn, J., to determine, on the factual evidence before them and on their understanding of the applicable law, whether bifurcation should be ordered or not - That appeared to be the reason why the prothonotary refused the defendant leave to the file those documents - Further, the defendant had not appealed that aspect of the prothonotary's order - Therefore, the documents were not relevant for the purposes of the appeal.

Cases Noticed:

Entral Group International Inc. et al. v. MCUE Enterprises Corp. et al. (2006), 354 N.R. 29 (F.C.A.), refd to. [para. 8].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), pp. 832 to 833, paras. 12.155, 12.156 [para. 11].

Counsel:

Heather E.A. Watts and Jennifer L. Jannuska, for the appellant;

Brad Limpert and Yuri Chumak, for the respondent.

Solicitors of Record:

Deeth Williams Wall LLP, Toronto, Ontario, for the appellant;

Cameron MacKendrick LLP, Toronto, Ontario, for the respondent.

This motion was dealt with in writing without the appearance of the parties by Nadon, J.A., of the Federal Court of Appeal, who delivered the following reasons for order on September 8, 2010.