Kun Shoulder Rest Inc. v. Joseph Kun Violin and Bow Maker Inc.
T-118-97
Hargrave P.
12/9/97
10 pp.
Motions for answers to questions posed on discovery-Action, counterclaim for injunctive relief involving trade-marks using family name, passing off, damages, or accounting of profits-Questions bearing on intent proper as could go to type of damages to be awarded-Also, plaintiff clearly raised issue of intent in pleadings-Questions as to development of product irrelevant to infringement-As plaintiff seeking damages at trial, not separate reference, necessary for defendants to answer questions dealing with financial, operational aspects of their organization in order to provide material from which judge might come to conclusion as to appropriate measure of profit-Questions asking what company understanding by certain wording used on packaging proper, although witness should not be asked to interpret, speculate on meaning of document-Questions relating to patent objections, allegations of invalidity better left to expert to explain under procedure set out in R. 482-Proper to ask discovery witness to speak of all facts, surrounding certain incident, of which either knows or must properly inform himself about-Never permissible to ask discovery witness as to facts relied upon in support of certain allegation, as requires witness to choose facts, disclose how lawyer might prove given allegation-Particular facts relied upon based upon counsel's view of law-Examination for discovery of witness seeking to discover fact, not argument as to what is relevant in order to prove given plea-Fundamental rule: examination for discovery is as to facts, not as to law-Permitting question, requiring witness to select facts upon which relies to support given allegation, attempt to evade fundamental rule by requiring witness to consider applicable law, then use it to select facts, announce result: Can-Air Services Ltd. v. British Aviation Insurance Co. (1989), 30 C.P.C. (2d) 1 (F.C.A.)-Substantial number of defendant's questions seeking answers descriptive of plaintiff's shoulder rests and falling within James River Corp. of Virginia v. Hallmark Cards, Inc. (1997), 72 C.P.R. (3d) 157 (F.C.T.D.) concept of having discovery witness describe characteristics of product as party understanding them-Questions going to correlation of aspects of plaintiff's shoulder rests with patent wording, technical description of shoulder rests produced by third party competitors, province of experts-Federal Court Rules, C.R.C., c. 663, R. 482 (as am. by SOR/90-846, ss. 18, 19).