Polansky Electronics Ltd. v. AGT Ltd. et al., 2002 ABQB 172

• Judge: Sulyma, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 16, 2001
• Citations: 2002 ABQB 172;(2002), 306 A.R. 333 (QB)

Polansky Electronics Ltd. v. AGT Ltd. (2002), 306 A.R. 333 (QB)

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Temp. Cite: [2002] A.R. TBEd. FE.097

Polansky Electronics Ltd. (plaintiff) v. AGT Limited, AGT Cellular Limited, Alta Telecom International Ltd., Telus Corporation and Alberta Telephones Commission (defendants)

(Action No. 9103 18752; 2002 ABQB 172)

Indexed As: Polansky Electronics Ltd. v. AGT Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sulyma, J.

February 13, 2002.

Summary:

The plaintiff sued the defendants for patent infringement.

The Alberta Court of Queen's Bench, in a decision reported at 252 A.R. 206, allowed the action and dismissed a counterclaim by the defendants. The defendants appealed.

The Alberta Court of Appeal, Conrad, J.A., dissenting, in a decision reported at 277 A.R. 43; 242 W.A.C. 43, allowed the appeal and ordered a new trial.

The defendants applied for leave to amend the statements of defence; to increase the amount of security for costs; to provide directions as to further examinations for discovery before the re-trial of the action; and to order the examination for discovery of an officer and a former employee of the plaintiff corporation.

The Alberta Court of Queen's Bench granted the defendants leave to amend the statements of defence and ordered that the defendants could conduct further examination for discovery and an examination for discovery of an officer and a former employee of the plaintiff. The court declined to increase the amount of security for costs.

Practice - Topic 2123

Pleadings - Amendment of pleadings - Statement of defence - General - [See second Practice - Topic 2136 ].

Practice - Topic 2136

Pleadings - Amendment of pleadings - Before new trial - The plaintiff's patent infringement action was allowed - The Court of Appeal allowed an appeal and ordered a new trial - The defendants applied for leave to amend the statements of defence - The defendants contended that the Court of Appeal's direction for a de novo hearing contemplated or encompassed amended pleadings and further examinations for discovery - The plaintiff contended that by its judgment it could be concluded that the Court of Appeal contemplated that the issues between the parties were well defined and that their absence of comment on the insufficiency of the pleadings supported that conclusion - The Alberta Court of Queen's Bench rejected the defendants' and the plaintiff's contentions - The court stated that the proceedings continued to be governed by the Rules of Court - See paragraphs 3 to 10.

Practice - Topic 2136

Pleadings - Amendment of pleadings - Before new trial - The plaintiff's patent infringement action was allowed - The Court of Appeal allowed an appeal and ordered a new trial - The defendants applied for leave to amend the statements of defence - The plaintiff objected to the proposed amendments as defences that were or ought to have been known by the defendants prior to the first trial - The Alberta Court of Queen's Bench granted the defendants' application to amend the statements of defence - While there was merit to the submission that matters raised by the proposed amendments could have been raised long ago, the law was clear that the issue was whether such amendments would cause injustice to the plaintiff which could not be compensated in costs - The prejudice to the plaintiff of further discoveries and meeting new defences was not an injustice which could not be compensated by costs - Costs of discoveries necessitated by the amendments were to be paid by the defendants on a solicitor and client basis - See paragraphs 12 to 16.

Practice - Topic 2142

Pleadings - Amendment of pleadings - Considerations governing granting of leave - [See second Practice - Topic 2136 ].

Practice - Topic 4160

Discovery - General principles - When available - The plaintiff's patent infringement action was allowed - The Court of Appeal allowed an appeal and ordered a new trial - The defendants contended that they had never had an opportunity to conduct an examination for discovery with respect to documents produced during the trial regarding the plaintiff's calculations of its damages - The plaintiff submitted that the documents were the plaintiff's compilation of the defendants' own production relating to its sale invoices and that it produced nothing new other than reorganized material and a spreadsheet analysis of the defendants' documents - The plaintiff submitted that the documents were prepared for the purposes of trial and would not form part of its normal production - The Alberta Court of Queen's Bench held that although the source of the plaintiff's documents was the defendants' own documents, they resulted in a compilation and analysis relied on in proving damages and were therefore documents that properly should be part of the plaintiff's production and subject to examination for discovery - See paragraphs 20 to 24.

Practice - Topic 4160

Discovery - General principles - When available - The plaintiff's patent infringement action was allowed - The Court of Appeal allowed an appeal and ordered a new trial - The defendants contended that they had never had an opportunity to conduct an examination for discovery with respect to documents produced during the trial regarding the plaintiff's calculations of its damages - The Alberta Court of Queen's Bench rejected the plaintiff's submission that the documents were not discoverable on the basis that they were prepared in contemplation of litigation and as an analysis for evidentiary purposes - A party had to disclose such material if it intended to introduce it into evidence - The plaintiff did introduce the documents into evidence and relied on them in proving damages and the documents were therefore subject to examination for discovery - See paragraphs 20 to 24.

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - [See second Practice - Topic 4160 ].

Practice - Topic 4413

Discovery - Order for examination for discovery - Order for further examination - The plaintiff's patent infringement action was allowed - The Court of Appeal allowed an appeal and ordered a new trial - The defendants sought to conduct further examinations for discovery of both an officer and a former employee of the plaintiff corporation - The defendants submitted that although the case management judge had imposed limitations with respect to further examinations for discovery having regard, in part, to the approaching date of the first trial, the plaintiff had continued to produce documents to the defendants (most significantly a schematic drawing) - The Alberta Court of Queen's Bench held that given the plaintiff's late production, further examination for discovery would not constitute an unfairness to the plaintiff and its absence would constitute an unfairness to the defendants - While the defendants had had an opportunity to review the schematic drawing and conduct cross-examinations, that did not take the place of the right to conduct an examination for discovery - See paragraphs 17 to 19.

Practice - Topic 8146

Costs - Security for costs - Amount of security - Grounds for increasing amount of security - The plaintiff's patent infringement action was allowed - The Court of Appeal allowed an appeal and ordered a new trial - Before the first trial, the plaintiffs had been ordered to deposit $75,000 as security for costs - The defendants sought an increase in the amount of security for costs on the basis that Schedule C of the Rules of Court had been amended to provide for increased party and party costs since the time of the original order, the Court of Appeal had ordered that costs of the first trial be addressed by the trial judge after the retrial, and if the proposed increase were allowed the security for costs would not even take into account the costs of a new trial and would remain lower than the costs already incurred - The Alberta Court of Queen's Bench declined to increase the security for costs where doing so would greatly prejudice the plaintiff's ability to proceed with a new trial - As the amendments to Schedule C were contemplated at the time of the original order, it was not a reasonable basis for increasing security - See paragraphs 25 to 42.

Cases Noticed:

Friends of the Athabasca Environmental Association et al. v. Alberta Public Health Advisory and Appeal Board et al. (1994), 153 A.R. 225; 18 Alta. L.R.(3d) 92 (Q.B.), affd. (1996), 181 A.R. 81; 116 W.A.C. 81; 37 Alta. L.R.(3d) 148 (C.A.), refd to. [para. 6].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214, refd to. [para. 6].

R. v. Thomas (A.F.), [1998] 3 S.C.R. 535; 223 N.R. 266; 115 B.C.A.C. 161; 189 W.A.C. 161, refd to. [para. 6].

Dipalma v. Gavin Estate (1996), 109 A.R. 142; 43 Alta. L.R.(3d) 161 (Q.B.), refd to. [para. 10].

Rago Millwork & Supplies Co. v. Woodhouse (D.) Construction Ltd. (1981), 28 A.R. 499 (Q.B.), refd to. [para. 10].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (2000), 269 A.R. 49; 82 Alta. L.R.(3d) 382 (Q.B.), refd to. [para. 10].

Counsel:

D.M. Savich, for the plaintiff;

C.J. Kvas and A.R. Lambert, for the defendants.

These applications were heard on November 16, 2001, before Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on February 13, 2002.