Axia Inc. v. Northstar Tool Corp.

Axia Inc. v. Northstar Tool Corp.

Motion dismissed because the applicant failed to show the evidence sought was not available earlier; the applicant did not cross-examine the deponent on the affidavit and therefore did not exhaust the narrower remedy available under Rule 301, failing to meet the Lapointe Rosenstein requirement that the evidence was not available at an earlier date.

Citation
2005 FC 526
Parties
Applicant (plaintiff): Axia Incorporated; Respondent (defendant): Northstar Tool Corporation
Court
Federal Court
Jurisdiction
Canada
Judgment Date
19 April 2005
Procedural Posture
Motion for Leave to File Supplementary Evidence in Support of S.52 Patent Act Application / Interlocutory Motion (supplementary Evidence Under Rules 301, 312(c), 313)
Outcome
Motion dismissed; no order as to costs.
Legal Topics
Supplementary Evidence, Cross Examination on Affidavit, Section 52 Patent Act, Federal Court Rules (rules 301, 312(c), 313)
Source Language
English
Civil Procedure Intellectual Property Patent Law Evidence Supplementary Evidence Cross Examination on Affidavit Section 52 Patent Act Federal Court Rules (rules 301, 312(c), 313)

Case Brief

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Parties

Axia Incorporated

Applicant (plaintiff)

Northstar Tool Corporation

Respondent (defendant)

Procedural Posture

Motion for Leave to File Supplementary Evidence in Support of S.52 Patent Act Application / Interlocutory Motion (supplementary Evidence Under Rules 301, 312(c), 313)

Legal Issues

  1. 1 Whether to permit filing of supplementary transcript evidence
  2. 2 Whether the evidence sought was available earlier
  3. 3 Whether the applicant exhausted cross-examination on affidavit before seeking supplementary evidence

Ratio Decidendi

Motion dismissed because the applicant failed to show the evidence sought was not available earlier; the applicant did not cross-examine the deponent on the affidavit and therefore did not exhaust the narrower remedy available under Rule 301, failing to meet the Lapointe Rosenstein requirement that the evidence was not available at an earlier date.

Court Disposition

Motion dismissed; no order as to costs.

Orders

  • The motion is dismissed.
  • There will be no order as to costs.