Federal Court Decisions

 

Date: 20070829

Docket: T-1113-04

Citation: 2007 FC 870

Ottawa , Ontario , August 29, 2007

PRESENT:  The Honourable Mr. Justice Hugessen

 

BETWEEN:

RIVARD INSTRUMENTS INC.

Plaintiff

and

 

IDEAL INSTRUMENTS INC.

Defendant

 

REASONS FOR ORDER

 

(Delivered from the Bench at Ottawa , Ontario ,

on August 29, 2007)

 

• [1] I am going to dismiss this motion for summary judgment brought by the defendant.

 

• [2] In my view there is clearly a genuine issue for trial in this case.

 

• [3] The plaintiff holds a patent for a magnetically detectable cannula, apparently used in the meat packing industry, so as to detect broken hypodermic needles in meat which is being prepared for human consumption.

 

• [4] The relevant claim is for a cannula composed in part of ferritic stainless steel.

 

• [5] The defendant moving for summary judgment says that its cannula is made not of ferritic stainless steel but of duplex stainless steel.

 

• [6] The plaintiff’s expert witness says that duplex stainless steel, is itself a composition, one of whose components is ferritic stainless steel, and that that component or “phase” as he calls it, is separately detectable by microscopic analysis of the final product.

 

• [7] That opinion appears to be disagreed with by the defendant’s expert witness apparently basing himself on what he considers to be a definition of the words ferritic stainless steel in the disclosure.

 

• [8] Whether or not he is right in that pretention I do not think it appropriate for me to comment.Equally I do not think it appropriate for me to comment on whether or not the plaintiff’s expert witness is correct.

 

• [9] Clearly the two experts conflict.Both were cross-examined at some length.Neither resiled from his opinion.That seems to me is the classic circumstance in which the Court ought not to grant summary judgment and I would cite Trojan Technologies, Inc. v. Suntec Environment Inc. (2004) 31 C.P.R. (4^th) 241 (F.C.A.) as a sufficient authority for that proposition.

 

• [10] Accordingly the case must go to trial.

 

• [11] The motion for summary judgment will be dismissed with costs.

 

 

“James K. Hugessen”

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:  T-1113-04

 

STYLE OF CAUSE:  RIVARD INSTRUMENTS INC. v.

  IDEAL INSTRUMENTS INC.

 

 

PLACE OF HEARING:  Ottawa , Ontario

 

DATE OF HEARING:  August 29, 2007

 

REASONS FOR ORDER:  HUGESSEN J.

 

DATED:  August 29, 2007

 

 

 

APPEARANCES:

 

Terrance J. McManus	FOR THE PLAINTIFF
Scott Maidment	FOR THE DEFENDANT

 

SOLICITORS OF RECORD:

 

MILTON, GELLER LLP OTTAWA , ONTARIO	FOR THE PLAINTIFF
MCMILLAN BINCH MENDLESOHN LLP TORONTO , ONTARIO	FOR THE DEFENDANT