Date : 20030422
Docket : T-1669-01
Citation: 2003 FCT 468
BETWEEN :
JEAN-MARC GAUTHIER
Plaintiff/
Defendant by counterclaim
AND :
LES PRODUITS DE SPORT I-TECH INC.
Defendant/
Plaintiff by Counterclaim
ROULEAU J.
[1] The defendant, plaintiff by counterclaim, seeks an order pursuant to Rule 107 of the Federal Court Rules, 1998, directing that the quantum of damages incurred by the plaintiff flowing from any infringement of the defendant's rights be the subject of a separate proceeding after trial.
[2] The Statement of Claim alleges that twelve (12) of the defendant's products infringe Canadian Patent No. 1,172,803.
[3] After having been approached by counsel for the defendant to consent to a bifurcation Order, counsel for the plaintiff denied the request.
[4] The determination of profits, as claimed, at this stage of the proceeding would require an expensive enquiry by the defendant into 12 different impugned protectors built into sports equipment and manufactured by the defendant company.
[5] It is submitted that pre-trial examinations as well as evidence at trial would be lengthy and expensive to both parties. It is further suggested that because of the expiry of the patent there is some dispute as to what years limitations may apply.
[6] Further it is argued that plaintiff's damages or accounting of profits of the defendant are distinct from infringement and validity issues and it would be less costly to both parties to first determine the matter on the merits and thus bifurcation would be a logical step. Bifurcation would result in a more expeditious and less expensive determination of this proceeding on the merits.
[7] The only valid argument offered by the plaintiff who resisted bifurcation was to the effect that if the Court refused to grant the Order it may speed up the proceeding since having knowledge of all the defendant's business activities may lead to a settlement of the issue.
[8] Bifurcation is discretionary; I have considered all submissions and taken into account all relevant elements. I have been satisfied that bifurcation is practical and gives rise to economies of scale for both sides. Further I have been persuaded that it would expedite matters and be less costly for a plaintiff who probably does not have the resources that are available to the defendant company. There is also a clear and distinct issue between a determination on the merits and damages in these proceedings.
[9] Pursuant to Rule 107 of the Federal Court Rules, 1998, I hereby direct that any issue as to the quantum of damages incurred by the plaintiff flowing from, or the defendant's profits arising from, any infringement of the plaintiff's rights to be the subject of a separate proceeding after Trial.
[10] All issues with respect to establishing a timetable for exchange of documents, discoveries and other proceedings to be determined by the Case Management Judge.
JUDGE
OTTAWA, Ontario
April 22, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1669-01
STYLE OF CAUSE: JEAN-MARC GAUTHIER v. LES PRODUITS DE
SPORT I-TECH INC.
PLACE OF HEARING: Montreal
DATE OF HEARING: April 7, 2003
REASONS FOR : THE HONOURABLE MR. JUSTICE ROULEAU
APPEARANCES:
Mr. Pascal Lauzon FOR PLAINTIFF/DEFENDANT BY COUNTERCLAIM
Mr. George R. Locke FOR DEFENDANT/PLAINTIFF
BY COUNTERCLAIM
SOLICITORS OF RECORD:
Mr. Pascal Lauzon FOR PLAINTIFF/DEFENDANT
Montreal, Quebec BY COUNTERCLAIM
Mr. David R. Collier / Mr. George R. Locke FOR DEFENDANT/PLAINTIFF
Montreal, Quebec BY COUNTERCLAIM