Flexi-Coil Ltd. v. F.P. Bourgault Industries Air Seeder Division Ltd.
A-256-94
Strayer J.A.
29/11/94
4 pp.
Appeal from trial judgment confirming dismissal of application for order requiring assignors of patent to attend for examination for discovery although statement of defence not filed-Federal Court Rules, R. 456(5) permitting examination of assignor where assignee party to action-R. 457 governing examination for discovery of adverse parties-Trial Judge, prothonotary holding right to examine assignor only after close of pleadings-Trial Judge holding "Gap Rule" applicable so as to allow resort to Saskatchewan Queen's Bench Rules, precluding discovery prior to filing statement of defence-Appeal dismissed-While gap in Federal Court Rules as no specific provision as to when non-party, i.e. assignor, may be examined, matter determined by analogy to other provisions of Federal Court Rules-Principle of R. 457 that normally examination for discovery not available to party until its pleading filed and affidavit of documents served-Sole exception R. 457(2), allowing defendant to examine plaintiff any time after statement of claim filed-No justification for imposing on non-party such as assignor obligation which Rules only place on plaintiff, i.e. obligation to be examined for discovery before issues clearly identified by filing statement of defence-Appellant to pay costs here and below regardless of outcome of cause-Federal Court Rules, C.R.C., c. 663, RR. 5, 456 (as am. by SOR/90-846, s. 15), 457 (as am. idem).