Date: 20010614
Docket: T-1733-99
Neutral Citation: 2001 FCT 654
Ottawa, Ontario, this 14th day of June 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
HIGHLINE MANUFACTURING. INC.
Plaintiff
- and -
CONVEY-ALL INDUSTRIES INC.
Defendant
(Plaintiff by Counterclaim)
- and -
RICHARD J. EPP and DWAYNE S. EPP
Defendants
(Defendants by Counterclaim)
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] I have before me two cross-motions for summary judgment.
[2] In the one, Convey-All Industries Inc. seeks dismissal of the claim of infringement and a declaration of invalidity. In the other, Highline Manufacturing Inc. seeks judgment for infringement.
[3] Both claims fall to be decided on the same issue, namely whether there is evidence before the Court to support the relief being sought. In the case of Convey-All Industries Inc., I am asked to draw conclusions from drawings of the two devices as well as affidavit evidence. There is no evidence from any witness that what is represented on the drawings corresponds to the invention or to the claims of the patent. It is said in reply that no expert evidence is required and that I can draw the appropriate conclusion based upon an examination of the drawings and photographs.
[4] In the case of Highline Manufacturing Inc., I am asked to rely upon the conclusion expressed by Mr. Lepage that he has examined the drawings and photos and in his view they contain all the elements contained in claims 1, 2, 3, 6, 7 and 8 of the patent.
[5] In my view, there is insufficient evidence to support either motion. While I do not agree that expert evidence is necessarily required to draw conclusions from the drawings, I agree with Mr. Raber that evidence is required to tie the drawings to the device and the device to the claims.
[6] Furthermore, the evidence required is more than simply a conclusion. A conclusion as to infringement is an expert opinion for which no foundation has been laid. Mr. Lepage may very well be able to compare and identify the items on the drawings and photos and relate them to the claims. But for me to act upon that comparison, he must put it before me. It is insufficient to simply give me his conclusion.
[7] For those reasons, both motions for summary judgment are dismissed.
[8] As to the question of costs, since success has been divided, costs for Highline Manufacturing Inc. and Convey-All Industries Inc. shall be costs in the cause. As the Epp defendants were successful in their position, they shall have their costs in any event of the cause.
ORDER
For the reasons stated above, the motions for summary judgment are dismissed.
Costs for Highline Manufacturing Inc. and Convey-All Industries Inc. shall be costs in the cause. Richard J. Epp and Dwayne S. Epp shall have their costs to be assessed in any event of the cause.
"J.D. Denis Pelletier"
Judge