Lubrizol Corp. et al. v. Imperial Oil Ltd., (1994) 79 F.T.R. 14 (TD)

• Judge: Cullen, J.
• Court: Federal Court (Canada)
• Case Date: April 18, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 79 F.T.R. 14 (TD)

Lubrizol Corp. v. Imperial Oil (1994), 79 F.T.R. 14 (TD)

MLB headnote and full text

The Lubrizol Corporation and Lubrizol Canada, Limited (plaintiffs) v. Imperial Oil Limited and its subdivision Paramins (defendant)

(T-577-87)

Indexed As: Lubrizol Corp. et al. v. Imperial Oil Ltd.

Federal Court of Canada

Trial Division

Cullen, J.

April 25, 1994.

Summary:

Lubrizol owned a patent relating to additives for lubricating compositions. Lubrizol brought a patent infringement action against Imperial. Imperial denied infringing the patent and challenged the validity of the patent.

The Federal Court of Canada, Trial Division, in a judgment reported 39 F.T.R. 161, allowed Lubrizol's action. The court held that the patent was valid and infringed by Imperial. The court directed an accounting of profits and ordered Imperial to deliver all infringing substances to Lubrizol. Imperial appealed. Lubrizol cross-appealed the refusal of the trial judge to award exemplary damages.

The Federal Court of Appeal, in a judgment reported 150 N.R. 207, allowed Imperial's appeal in part (re date of infringement and prejudgment interest). The court allowed Lubrizol's cross-appeal and ordered a continuance of the trial on the issue of exemplary damages. Prior to the actual continuance of the trial, Imperial applied for an order to determine the scope of the evidence it may put in on the continuance.

The Federal Court of Canada, Trial Division, dismissed the application. The court stated that it should not exercise its discretion to allow Imperial to submit further evidence, be it documentary or viva voce.

Practice - Topic 9244

Appeals - Continuance of trial - Evidence - The Federal Court of Appeal ordered the continuance of the trial in a patent infringement suit on the issue of exemplary damages that was not properly resolved at trial - The defendant applied for leave to call additional relevant evidence on the issue - The Federal Court of Canada, Trial Division, stated that it had a discretion to permit further evidence to be adduced, but declined to exercise that jurisdiction - Exemplary damages were in issue at trial - The defendant made a tactical decision not to adduce the available evidence and was now bound by that decision - Additionally, some of the evidence now sought to be introduced was previously requested by the plaintiff but not produced by the defendant - Introduction of new evidence would unduly delay resolution of the issue - The court noted that a continuance of a trial was not a new trial.

Cases Noticed:

Consumers' Gas Co. v. Minister of National Revenue, [1984] 1 F.C. 779; 52 N.R. 106 (F.C.A.), refd to. [para. 11].

TRW Inc. v. Walbar of Canada Inc. (1991), 132 N.R. 161; 39 C.P.R.(3d) 176 (F.C.A.), refd to. [para. 11].

Esso Petroleum Corp. v. Southport Corp., [1956] A.C. 218 (H.L.), refd to. [para. 11].

Farbwerke Hoechst A.G. Vormals Meister Lucius & Bruning v. Halocarbon (Ont.) Ltd. (1983), 74 C.P.R.(2d) 95 (F.C.T.D.), refd to. [para. 18].

Voith (J.M.) GmbH v. Beloit Corp. (1991), 128 N.R. 54; 36 C.P.R.(3d) 322 (F.C.A.), refd to. [para. 19].

Reliance Electric Industrial Co. et al. v. Northern Telecom Canada Ltd. (1992), 145 N.R. 267; 44 C.P.R.(3d) 161 (F.C.A.), refd to. [para. 19].

Alberta Wheat Pool v. Canada Labour Relations Board (1992), 151 N.R. 1 (F.C.A.), refd to. [para. 24].

Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 48 D.L.R.(3d) 641 (Ont. H.C.), affd. (1975), 65 D.L.R.(3d) 231 (C.A.), refd to. [para. 29].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 52 [para. 7].

Federal Court Rules, rule 420(2)(b) [para. 14]; rule 494(7) [para. 16].

Counsel:

Donald H. MacOdrum and Peter E.J. Wells, for the plaintiffs;

John F. Howard, Q.C., for the defendant.

Solicitors of Record:

Ridout & Maybee, Toronto, Ontario, for the plaintiffs;

Blake, Cassels & Graydon, Toronto, Ontario, for the defendant.

This application was heard on April 18, 1994, at Ottawa, Ontario, before Cullen, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on April 25, 1994.