They were to return to plaintiff any and all
confidential information, if any, presently
in their possession.
Sure Track Courier Ltd. v. Kai-
sersingh, [2011] O.J. No. 3745, Ont.
S.C.J., Fragomeni J., Aug. 17/11. Digest
No. 3119-015 (Approx. 10 pp.)
INTELLECTUAL PROPERTY
PATENTS – Appellate court dis-
missed appeal from a finding that appel-
lant infringed patent belonging to
respondent.
Appeal from a finding that appellant
infringed respondent’s patent (the 115
patent) and that a second patent (the 366
patent) was invalid. Respondent owned
three Canadian patents which related to
processes for the synthesis of lithium
mixed metal cathode materials for use in
lithium ion batteries. The invention set
out in the patents was an improved
method where selective carbothermal
reduction was used to make lithium
mixed metal compounds that could contain conductive carbons intimately mixed
with the final product of the reaction.
The source of carbon was not restricted
in form and it was not necessary that
carbon be the sole reductant used in the
process. Appellant manufactured a car-bon-coated lithium iron phosphate using
a process that respondent claimed
infringed its three patents. Appellant
denied the allegations and alleged that
its product was manufactured pursuant
to a Canadian patent and Canadian patent application for which it held licences.
It also alleged that its process did not
involve any carbothermal reduction and
that there was no carbon, in particle
form, in its starting materials or incorporated in them. The trial judge concluded that respondent’s 115 and 366
patents were valid and that appellant
infringed the 115 patent as the process it
used included all of the essential elements expressly referred to in the claims
of the 115 patent. She concluded that
respondent was entitled to reasonable
compensation for the period after the
issuance of the 115 patent and was
entitled to make an election between its
damages and an accounting of profits.
The judge found the 366 patent valid.
HELD: Appeal dismissed. The trial
judge made no error in concluding that
appellant’s process infringed the 115 patent as she correctly found that the term
“carbon” in the patent was not restricted to
particulate carbon and that it encompassed carbon in other forms. Her construction of “carbon” was based on the
evidence before her as to what a person
skilled in the art, reading the patent as a
whole, would understand the expression
to mean. Furthermore, the judge did not
err in finding that the 366 patent was valid
as disclosure was sufficient given that
there was no evidence that a person skilled
in the art would need more information to
work the invention.
Valence Technology, Inc. v. Phostech
Lithium Inc., [2011] F.C.J. No. 1232,
F.C.A., per Pelletier J.A. (Noël and
Mainville JJ.A. concurring), Aug. 17/11.
Digest No. 3119-016 (Approx. 9 pp.)
JUDGMENTS & ORDERS
SUMMARY JUDGMENT – Dispute
between appellants and respondents not
suitable for summary judgment because
there were material facts in dispute.
SUMMARY JUDGMENT – Court
refused to grant summary judgment
on promissory note on the face of contradictory affidavits that could not be
reconciled.
Motion for summary judgment on a
promissory note and cheque. Plaintiff was
an officer and director of J Inc., which
owned premises which were leased to
defendant 146 under a five year lease
expiring in April 2011. Defendant Y was
the sole officer and director of 146 and
signed a promissory note in favour of
plaintiff for $30,000 as well as a cheque
drawn on 146’s account for that amount.
The cheque was not honoured. Plaintiff
sued for the amount of the note. Defendants argued there was a failure of consideration for both the note and the
cheque. Y had entered into an agreement
to sell the variety store operated on the
premises by 146 to a third party. Defendant alleged that he was forced to reduce his
sale price by $40,000 because of a breach
by plaintiff of an agreement on the rent to
be charged to the third party.
HELD: Motion dismissed. The affidavit
evidence filed by the parties could not be
reconciled. There were mutually contradictory statements which required cross-examination. Although there was a potential claim for set off, the defence went
further than a mere right to set off. It also
alleged a total failure of consideration for
which the cheque and note were provided.
Summary judgment could not be granted
on the materials filed.
Sioufi v. Yogeswaran, [2011] O.J.
No. 3762, Ont. S.C.J., McDermot J.,
Aug. 19/11. Digest No. 3119-018
(Approx. 6 pp.)
CAUSATION – Plaintiff not able to
present any evidence to suggest
defendant S was liable for motor
vehicle accident.
Motion by defendant S for summary
judgment. Plaintiff’s negligence claim
against S arose from a motor vehicle accident in 2002. Plaintiff claimed damages of
$800,000 from S and co-defendant P, for
injuries and losses that she alleged were
sustained in the accident. P had not filed a
statement of defence or been noted in
default. His automobile insurer obtained a
court order adding it as a third party to the
action. S’s motion was supported by evidence obtained on examinations of discovery and notices to admit. P had been convicted in 2003 of careless driving. Plaintiff
acknowledged that, on the basis of the
evidence filed by S, summary judgment
should be ordered unless the court was of
the view that P’s possible testimony would
raise a genuine issue for trial that S was
contributorily negligent.
HELD: Motion granted. S had learned
through an interpreter that P had suffered
two strokes, had serious diabetes from
which he lost a leg and other serious medical problems. She believed that, were P to
testify, his evidence would be that he had
no recollection of the accident. P apparently made some statements at the accident scene. Plaintiff raised at best a faint
possibility that P may be able to testify and
may recover his memory sufficiently to be
able to provide further evidence on how
the accident occurred. A summary judgment motion could not be defeated on the
basis of suggestions of evidence. The evidence otherwise presented inevitably led
to the conclusion that there was no genuine issue for trial concerning the liability of
defendant S.
Guo v. Simpson, [2011] O.J. No.
3759, Ont. S.C.J., Annis J., Aug. 19/11.
Digest No. 3119-019 (Approx. 4 pp.)
WILLS
VARIATION – Appellate court
restored provisions of testator’s original
will but increased bequest to one son
from $10,000 to $60,000 because of
health problems.
Appeal from an order varying the will
of R. Appellant T was the son of R. He had
been estranged from R for years. T subse-
quently became estranged from his mother
as well and he was ultimately left out of
her will in favour of his brother P. T and R
reconciled in 2007 after both experienced
significant health problems. When R’s
cancer progressed, he decided to make a
new will, providing for his common-law
wife K and T. The will provided bequests
of $43,000 to R’s other relatives, $10,000
and a car to T, nothing to P and the residue
of the estate to K. At the time of R’s death
in 2008, T had a limited disability pension
that would terminate when he reached 65
years of age. K had $2,100 in pension
income. The estate had a value of
$438,000. T and K challenged the will.
The judge found that R had a legal and
moral duty to provide for K as his spouse,
but considered his promise to look after
her as limited to her lifetime. He found
that R owed a tenuous duty to his adult
sons. He found R’s bequest to T inad-
equate in comparison to his bequests to
others. He substituted a legacy of $20,000
to T. He granted K a life estate in the resi-
due, to be paid over to T if he survived K.
VARIATION – Appellate court
upheld dismissal of son’s action to vary
mother’s will.
Appeal by T from the dismissal of his
action to vary his mother’s will. His
mother, J, had been estranged from him
for several years before her death. When
diagnosed with terminal cancer and
immediately before her death, J refused
to allow family members to contact T. She
called him a bully, miserable and not like
a son. In her will, executed the day before
she died, J left a life estate in her home to
her common-law partner and the residue
of her estate to her other son, P. At the
time of the estrangement, T was able-bodied and capable of supporting himself
financially. T subsequently became disabled because of a leg amputation,
detached retina and a heart condition. It
was expected that he would receive a British pension when he turned 65 but he did
not qualify for Canada Pension Plan. P
worked steadily for 30 years in Canada
and was financially secure. He claimed
that a payment of $93,000 he had
received from his father R, before they
too became estranged in the 1980s in
relation to a business dispute, was money
that P had earned working for their business. At the trial of his wills variation
action, T was not permitted to adduce a
2008 letter from his father indicating
that this payment to P was a loan that he
never repaid and containing other representations about J’s statements that she
would never disinherit one of her children. The judge considered the letter
insufficiently reliable. The judge found
that J’s moral duty to T did not require
her to ignore T’s rejection of her or to
treat him equally to his brother.
HELD: Appeal dismissed. The judge
had justifiable concerns about the father’s
2008 letter given that T assisted in its
preparation. The judge’s conclusions about
the reasons for the estrangement between
J and T were based on oral evidence and
were entitled to deference. There was a
sufficient evidentiary basis to support the
conclusion that T had instigated the
estrangement and took no steps to change
the situation for many years. Despite his
subsequent health problems and inability
to work, J had properly assessed T’s
capabilities at the time she made her will.
Hall v. Hall Estate, [2011] B.C.J. No.
1588, B.C.C.A., per Neilson J.A.
(Groberman and Bennett JJ.A. concurring), Aug. 22/11. Digest No. 3119-021
(Approx. 11 pp.)
