A-1422-83
Everest & Jennings Canadian Ltd. (Appellant)
(Defendant)
v.
Invacare Corporation (Respondent) (Plaintiff)
Court of Appeal, Urie, Ryan and Stone JJ.—
Toronto, February 14, 1984.
Practice — Discovery — Production of documents — Rele
vancy — Appeal from Trial Division order refusing to require
respondent to produce balance of file containing exhibit to
examination for discovery of officer of respondent —
Respondent contesting production on ground irrelevant to
matters in issue — No claim of privilege — Appeal allowed —
Production of exhibit admission of relevancy — Letter exhib
ited not clearly relating solely to invention in dispute and not
to other inventions — File may be relevant to ascertain letter's
relevancy — Test of relevancy for purposes of discovery set
out in Boxer and Boxer Holdings Ltd. v. Reesor, et al. —
Plaintiffs having right to access to documents which may lead
them to train of inquiry which may directly or indirectly
advance their case or damage defendant's — Ultimate rele
vance matter for Trial Judge.
CASE JUDICIALLY CONSIDERED
APPLIED:
Boxer and Boxer Holdings Ltd. v. Reesor, et al. (1983),
43 B.C.L.R. 352 (B.C.S.C.).
COUNSEL:
P. E. J. Wells for appellant (defendant).
G. J. Zimmerman for respondent (plaintiff).
SOLICITORS:
Lang, Michener, Cranston, Farquharson &
Wright, Toronto, for appellant (defendant).
Sim, Hughes, Toronto, for respondent (plain-
tiff).
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: This is an appeal from an order made
in the Trial Division refusing to require the
respondent to produce the balance of a file which
contained Exhibit 7 to the examination for discov
ery of an officer produced by the respondent.
The action is one for patent infringement in
which it is alleged, inter alia, that the appellant
has infringed Canadian letters patent 805,957 for
a latch for a swinging footrest for wheelchairs.
Exhibit 7 is a letter from Mobilaid, Inc. a prede
cessor of the respondent, to a firm of patent attor
neys which refers to "several versions of the swing
ing detachable footrest". The letter is dated June
26, 1965 which is a date prior to the priority date
of a corresponding United States patent applica
tion dated October 31, 1966. It came from a file
on a patent application relating to the swinging
detachable footrest. There seems to be no doubt
that it was produced as the respondent stated in its
memorandum, "as the earliest document available
to indicate a date of conception and reduction to
practice of the invention in suit". The respondent
contests the production of the balance of the file
on the ground that nothing in it is relevant to the
matters in issue. The respondent relied solely on
the lack of relevancy for its refusal to produce the
balance both in the Trial Division and here. It did
not rely on a claim of privilege.
We are all of the opinion that the appeal must
succeed. By producing Exhibit 7, the respondent
acknowledged its relevancy. The letter does not, in
any way, on the plain meaning of the words there
in, indicate that it relates only to the invention
disclosed, if any, in the patent in suit and does not
relate to some other device or devices entirely. It
would thus appear that to appreciate the letter's
relevancy the file from which it was produced may
be equally relevant. The correct test of relevancy
for purposes of discovery was, in our opinion,
propounded by McEachern C.J. in the case of
Boxer and Boxer Holdings Ltd. v. Reesor, et al.
(1983), 43 B.C.L.R. 352 (B.C.S.C.) when, at page
359, he said:
It seems to me that the clear right of the plaintiffs to have
access to documents which may fairly lead them to a train of
inquiry which may directly or indirectly advance their case or
damage the defendant's case particularly on the crucial ques
tion of one party's version of the agreement being more prob-
ably correct than the other, entitles the plaintiffs to succeed on
some parts of this application.
When produced the documents in the file may
assist the appellant in its defence. On the other
hand, they may not and may, as the respondent
says, be totally irrelevant. In either event, the
matter in issue may be more readily resolved at
trial although their ultimate relevance and the
weight to be attached to them will be matters for
the Trial Judge.
The appeal, therefore, will be allowed with costs
both here and below and the respondent shall
produce for discovery the balance of the file which
contained Exhibit 7.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.