2019 FC, 2019 FC 1588

Date: 20191211 Docket: T-123-15 Citation: 2019 FC 1588 Ottawa, Ontario, December 11, 2019 PRESENT: The Honourable Mr. Justice Roy BETWEEN: BAUER HOCKEY LTD. Plaintiff/ Defendant by Counterclaim and SPORT MASKA INC. D.B.A.

CCM HOCKEY Defendant/ Plaintiff by Counterclaim ORDER AND REASONS [ 1 ] This is an appeal, pursuant to rule 51 of the Federal Courts Rules , SOR/98-106 [the rule], from an order of Madam Prothonotary Tabib dated October 22, 2019. [ 2 ] The matter before the Court pertains to the examination for discovery conducted of the corporate representative of the defendant ( " “CCM” " ) on December 5 and 6, 2018. The Plaintiff ( " “Bauer” " ) seeks an order from the Court to have CCM’s corporate representative answer some questions left without an adequate answer, according to Bauer. I.

The issues [ 3 ] There were numerous questions Madam Prothonotary Tabib, the Case Management Judge, was asked to deal with. The present appeal is concerned with five of them (items 32, 45, 46, 63 and 69). [ 4 ] For our present purposes, it will suffice to note that the parties in this case (Bauer Hockey Ltd. and Sport Maska Inc. d.b.a. CCM Hockey) are involved in a piece of somewhat protracted litigation concerning hockey helmets. There are some twelve helmets alleged to be infringing on Bauer’s patents.

There are seven patents, four of which have been dubbed the " “rotational patents” " (protection against rotational impacts) and three others referred to as " “adjustment patents” " (types of adjustment mechanisms for helmets). As usual, Bauer claims infringement by CCM of its patents in manufacturing or selling ice hockey helmets in its Resistance, Fitlife and Tacks product lines, while CCM denies infringement and counterclaims that Bauer’s patents are invalid.

Some focus has been put on obviousness and lack of utility as grounds of invalidity. [ 5 ] The five items which are made the subject of this appeal are the following: item 32 : advise if any designers or technicians other than five identified individuals worked on the helmets at issue; provide names and responsibilities; if they are no longer with CCM, provide best knowledge of their contact information.

The Prothonotary’s decision reads: " “CONSIDERING the Court ruling that the development of the infringing helmets after the claim date cannot be relevant to any validity or infringement issue and therefore the Court limiting the answers to be provided by CCM for [item 32] to the development of the first RESISTANCE helmet prior to the claim dates of the patents at issue” " . The Prothonotary agreed for the answer to be provided for the " “2010-2012 timeframe” " . item 45 : provide any other reports communicated to CCM by Dr.

Hoshizaki or the Laboratory of the University of Ottawa for tests conducted on components of helmets, instead of solely on the helmet, including other reports on pods and bladders. Madam Prothonotary Tabib ruled that this is overbroad. She said: " “As phrased, overbroad. It does not seek specifically reports on the pods or on the bladders or reports on the development of a particular helmet but seeks any and all reports relating to components of helmets regardless of whether they are relevant or not. So, as phrased, overbroad”. " " " item 46 : provide the documents communicated to CCM by Dr.

Hoshizaki or the University of Ottawa regarding scientific researches related to helmets and rotational impacts. The Prothonotary chose to limit the discovery the period 2010 to 2012. Her decision with respect to item 46 is the same as for item 32, using the same phraseology. item 63 : verify and produce the design briefs for all helmet models in this action. The Court saw the request as overbroad and constituting a " “fishing expedition” " . The Prothonotary said: " “The question as asked is overbroad and a fishing expedition.

The development of allegedly infringing product might in certain cases be relevant to the climate in the industry and the common general knowledge and what was obvious and not-obvious but no foundation has been laid to seek production in respect of all helmets regardless of the date of development. The fact that the Defendant might rely on certain documents does not establish relevance of all similar documents or the irrespective [ sic ] of the date at which the work was done. So its overbroad as requested.

No foundation laid” " . item 69 : retrace and produce any other drawings made by CCM concerning how the pods and any other components would be

displayed or assembled in the Resistance helmet. Madam Prothonotary Tabib limited the response "“to the development of thefirst Resistance helmet and pod placement in relation to other components, if to the extent available”". Her formal order uses thesome phraseology as for items 32 and 46. II. Position of the parties [6] The plaintiff argues that the order concerning the five items is unduly restrictive.

Not only should the Court err on the side of cautionbecause errors may be corrected by the judge at trial, but is rather telling in my view the third paragraph of Bauer’s factum: "“The issuein the present motion is whether CCM’s development of its infringing hockey helmets after the claim date of Bauer’s patents caneventually be relevant to the obviousness allegations raised by CCM”" [my emphasis].

This is fundamentally the thesis advanced byBauer: it may find something in the years that followed 2012 because, "“(i)t is simply impossible to conclude that these questions haveno reasonable chance of eliciting information that the judge could eventually find relevant at trial …”" [my emphasis] (factum, para 7).In essence, Bauer asserts that if its "“invention”" was obvious, why did CCM have to collaborate with university researchers "“todevelop such features in its own helmets”" (factum, para 5).

That, somehow, could provide some information to negate the obviousnessarguments CCM will present at trial. [7] Bauer argues obviously for a broad scope to be allowed for relevance in an examination for discovery. There is not much doubt in myview that the examination for discovery is meant to be quite broad. The real question is how broad. That general proposition is reflectedin this Court’s decision in Apotex Inc. v Sanofi-Aventis, 2011 FC 52: [19] It is fair to say, therefore, that the Court will apply a generous and flexible standard of relevance in determiningwhether a question should be answered.

A fair amount of latitude will be allowed on discovery provided that a question isrelevant to issues raised by the pleadings.

The standard of relevance on discovery is lower than at trial and doubt as to thepropriety of the question will be resolved in favour of disclosure: see Monit International Inc. v Canada (1999), 175 FTR258; Glaxo Group Ltd. v Novopharm Ltd., [1998] FCJ No 1808, at para 4 (FCA). [20] That being said, the Court retains a residual discretion to decide not to compel the production of technically relevantdocuments where such production would have no benefit or could not be used to advance a party’s case.

Although there is abroad right of examination, there are limits on that right of discovery and the Court will not permit the discovery process tobe used as a fishing expedition: see Apotex Inc. v Merck & Co. Inc., 2004 FC 1038, at para 16; Eli Lilly Canada Inc. vNovopharm Limited, 2007 FC 1195, at para 19, aff’d 2008 FC 281; aff’d 2008 FCA 287, at paras 69-70; Pharmacia S.p.A.v. Faulding (Canada) Inc. (1999) (FCA), 3 CPR(4th) 126, at paras 2-3 (F.C.A.). [21] Moreover, the simple fact that a question can be considered “relevant” does not mean that it must inevitably beanswered.

Relevance must be weighed against matters such as the degree of relevance, how onerous it is to provide ananswer, whether the answer requires fact or opinion of law, and so forth: GSC Technologies Corp. v Pelican International,2009 FC 223, at para 11; AstraZeneca Canada Inc. v Apotex Inc., 2008 FC 1301. [8] The plaintiff relates its exploration to the obviousness defence announced by CCM. It states that factual evidence can be ofassistance in its defence against obviousness.

CCM conducted its own research project after 2012 such that, for Bauer, that shows that"“the technology of the Bauer’s patents after the claim date thereof, chances are that the inventions were also not obvious to the nationalskilled person as of the claim date”" (plaintiff’s factum, para 38).

No further information is provided; at its highest, the plaintiff contendsthat "“(i)n view of these factual circumstances, it does not seem far-fetched to think that the trial judge in this case will be very interestedin hearing about the development that was performed by CCM”" (plaintiff’s factum, para 39). [9] The respondent defends forcefully the decision of Madam Prothonotary Tabib. CCM points out that the plaintiff never showed howthe decision is an error that is palpable and overriding: it merely disagrees with the decision. Indeed CCM claims that Bauer receivedmore than what it was entitled to.

For CCM there is no foundation in the pleadings for questions that are that broad. These questionscould not assist the Court in determining issues of validity after the patents were filed.

This constitutes a fishing expedition; the questionsunder review lack proportionality and any foundation. [10] While Bauer suggested that there was an error of law, argues CCM, bringing with it a standard of review of correctness, there areno extricable errors of law raised by the plaintiff, but rather questions of mixed fact and law which call for the standard of "“palpable andoverriding error”" (Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 FCR 331).

Relyingon Canada v Lehigh Cement Limited, 2011 FCA 120, 417 NR 342 [Lehigh Cement], it contends that the facts and the law areinextricably linked: [24] The scope of permissible discovery depends upon the factual and procedural context of the case, informed by anappreciation of the applicable legal principles. See Bristol-Myers Squibb Co. v. Apotex Inc., 2007 FCA 379, 162 A.C.W.S.(3d) 911 at paragraph 35. In the words of this Court in Eurocopter v.

Bell Helicopter Textron Canada Ltd., 2010 FCA 142,407 N.R. 180 at paragraph 13, while “the general principles established in the case law are useful, they do not provide amagic formula that is applicable to all situations. In such matters, it is necessary to follow the case-by-case rule.” [25] It follows from this that the determination of whether a particular question is permissible is a fact based inquiry. Onappeal a judge’s determination will be reviewed as a question of mixed fact and law.

Therefore, the Court will only intervenewhere a palpable and overriding error or an extricable error of law is established. See Housen v. Nikolaisen, [2002] 2 S.C.R.235, 2002 SCC 33; Bristol-Myers Squibb Co. v. Apotex Inc., as cited above, at paragraph 35. Indeed, CCM cautions the Court not to fall into the trap of confusing extricable questions of law where this is no more than mixedquestions. It cites Teal Cedar Products Ltd. v British Columbia, 2017 SCC 32, [2017] 1 SCR 688, at para 45: [45] Courts should, however, exercise caution in identifying extricable questions of law because mixed questions, by

definition, involve aspects of law. The motivations for counsel to strategically frame a mixed question as a legal question —for example, to gain jurisdiction in appeals from arbitration awards or a favourable standard of review in appeals from civillitigation judgments — are transparent (Sattva, at para. 54; Southam, at para. 36). A narrow scope for extricable questions oflaw is consistent with finality in commercial arbitration and, more broadly, with deference to factual findings.

Courts mustbe vigilant in distinguishing between a party alleging that a legal test may have been altered in the course of its application(an extricable question of law; Sattva, at para. 53), and a party alleging that a legal test, which was unaltered, should have,when applied, resulted in a different outcome (a mixed question). [11] CMM contends that Bauer had to establish that its questions on discovery must be relevant to any unadmitted allegation of fact in apleading for its representative having to answer those (rules 240 and 242 of the Federal Courts Rules).

There was no referencewhatsoever to the pleadings in Bauer’s attempt to challenge the Prothonotary’s order. [12] The Court is reminded by CCM that obviousness is to be determined at the claim date (either the priority date or the filing date ofthe patent. Thus, anything else past that date is irrelevant. It states in its factum: 57.

Bauer has already obtained the benefit of access to CCM’s work prior to this 2012 filing date, despite the issue not beingpleaded and despite CCM’s private work not being “available to the public.” The work done by CCM after the filing date ofthe patents cannot be relevant to determining obviousness; a patent is either obvious or inventive as of the claim date, itcannot move from obvious to inventive after the fact.

The respondent claims that "“(i)f followed to its logical conclusion, Bauer’s position would allow any question to be compelled as it mayprovide some facts “useful” to determine obviousness… Under Bauer’s view, a simple pleading of obviousness would allow for nearlyunlimited discovery on anything the party wished to review no matter the subject or the time period. …”" (respondent’s factum, para 60). III.

Analysis [13] In this appeal, there are two pillars, and perhaps a third one, that will allow the Court to dispose of the case. [14] First, the plaintiff must satisfy the test on appeal: if we must contend with a question of law, the test is correctness. A question offact or of mixed fact and law is governed by the "“palpable and overriding”" test. Here, the plaintiff spent little time discussing theapplicable test, postulating more than showing the existence of a question of law spread throughout. In my view, there is no extricablequestion of law, which would take the plaintiff to a test of correctness.

The Prothonotary applied facts to the law and it is now the task ofthe plaintiff, in its appeal, to demonstrate a palpable and overriding error on her part. As found in Lehigh Cement (supra), the scope ofdiscovery is a function of the factual and procedural context and whether a question is permissible is a fact-based inquiry. [15] "“Palpable”" and "“overriding”" are terms of art that have been judicially considered.

The Supreme Court accepted the descriptiongiven by the Federal Court of Appeal and the Quebec Court of Appeal in Benhaim v St-Germain, 2016 SCC 48, [2016] 2 SCR 352, atparagraphs 38 and 39: [38] It is equally useful to recall what is meant by “palpable and overriding error”. Stratas J.A. described the deferentialstandard as follows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46: Palpable and overriding error is a highly deferential standard of review . . . . “Palpable” means an error that isobvious. “Overriding” means an error that goes to the very core of the outcome of the case.

When arguingpalpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. Theentire tree must fall. [39] Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 , [translation] “a palpable andoverriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse theselast two notions.” [16] The Federal Court of Appeal articulated some more the test in Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157,[2018] 2 FCR 344.

It insisted on the highly deferential standard that constitutes the standard and stressed the fact that "“palpable”" and"“overriding”" each have a threshold: [61] Palpable and overriding error is a highly deferential standard of review: Benhaim v. St. Germain, 2016 SCC 48, [2016]2 S.C.R. 352 at para. 38; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. When arguing palpableand overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. SeeCanada v.

South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286 at para. 46, cited with approval by the SupremeCourt in St. Germain, above. [62] “Palpable” means an error that is obvious.

Many things can qualify as “palpable.” Examples include obvious illogic inthe reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidencereceived in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and thefailure to make findings due to a complete or near-complete disregard of evidence. [63] But even if an error is palpable, the judgment below does not necessarily fall. The error must also be overriding. [64] “Overriding” means an error that affects the outcome of the case.

It may be that a particular fact should not have beenfound because there is no evidence to support it. If this palpably wrong fact is excluded but the outcome stands without it,the error is not “overriding.” The judgment of the first-instance court remains in place. [65] There may also be situations where a palpable error by itself is not overriding but when seen together with other

palpable errors, the outcome of the case can no longer be left to stand. So to speak, the tree is felled not by one decisive chop but by several telling ones. [66] Often those alleging palpable and overriding error submit that a first-instance court forgot, ignored, misconceived or gave insufficient weight to evidence because it did not mention the evidence in its reasons. Before us, Mr. Mahjoub frequently makes that submission. But a non-mention in reasons does not necessarily lead to a finding of palpable and overriding error . [My emphasis.] [ 17 ] This would appear to be a high test to meet.

The error must be obvious and it must be so important that the tree must fall. Recently, Millennium Pharmaceuticals Inc. v Teva Canada Limited , 2019 FCA 273 [ Millennium ] confirmed that " “(p)alpable and overriding error is a difficult standard to meet” " (para 6). [ 18 ] The Millennium Court commented helpfully on attempts made at parsing words in order to find errors that will then be portrayed as being significant: [8] The appellants try to demonstrate palpable and overriding error by parsing individual paragraphs of the Federal Court’s reasons closely and alleging defects .

To some extent, they followed the same approach when trying to show that the wrong legal test for obviousness was followed. We often see appellants trying this approach. A few words about it are apposite. [9] Some defects in reasons—gaps, imprecise wording or phrases that may seem wrong when read literally and in isolation —can suggest the presence of palpable and overriding error. But seldom do appellate courts draw that conclusion.

Instead, more often than not, appellate courts view these things as byproducts, artefacts and imperfections of the first-instance court’s distillation and synthesizing of reams of complicated data into brief, comprehensible reasons.

Appellate courts do not automatically construe these things as misunderstandings of the legal principles or instances of faulty application of the law to the facts: South Yukon at para. 49; Mahjoub at para. 69 . [10] To this end, South Yukon instructs appellate courts (at para. 51) “ to distinguish true palpable and overriding error on the one hand” from “the legitimate by-product of distillation and synthesis or innocent inadequacies of expression on the other .” An inquiry into palpable and overriding error overlooks matters of form and gets at the substance of what the first- instance court did. [11] To do this, an appellate court must go beyond the literal words of the first-instance court’s reasons, construing and understanding them “as a whole” in their wider context, “including the evidentiary record before the court, the submissions made, the issues that were live before the court, and the fact that judges are presumed to know the law on basic points ”: Canada v.

Long Plain First Nation , 2015 FCA 177 , 388 D.L.R. (4th) 209 at para. 143 ; R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 at paras. 35 , 55. The appellate court must also keep front of mind the rebuttable presumption that the first-instance court reviewed and considered all of the evidence: Housen at para. 46 . Reasons sometimes fail to mention a particular matter or body of evidence, address an issue in a cursory way, or express something awkwardly or infelicitously.

But the wider context often reveals what the first-instance court considered and decided, and why . [My emphasis.] [ 19 ] There is a need to consider the record, which is considerable, where the plaintiff, without much foundation, seeks to add to it in an attempt to find something which might prove somewhat useful. There were evidently a large number of items brought to the attention of the Case Management Judge, some of which were withdrawn by Bauer.

In fact, both parties claim some disagreement concerning the ruling, Bauer stating that it could have challenged more items (factum, para 17) while CCM argues that more information than allowable has already been disclosed as part of discovery (factum, para 46). As a matter of fact, the motion to compel was heard by the Case Management Judge on September 4, 2019 with judgment rendered more than six weeks later. [ 20 ] The second pillar is the avoidance of a " “fishing expedition” " . The proposition that discovery is not to be used as a fishing expedition to bolster a party’s case is not new.

There is of course a fundamental tension between allowing a robust discovery process without falling into the trap of vague and overbroad questions in the nature of a fishing expedition. In Burnaby Machine & Mill Equipment Ltd v Berglund Industrial Supply Co Ltd et al , [1984] BCWLD 2038 (FCTD) , Walsh J. of this Court was commenting on " “the tendency, particularly in industrial property cases, of parties to attempt to engage in fishing expeditions which should not be encouraged” " (para 5). [ 21 ] Our Courts accept a robust examination for discovery that produces a train of inquiry.

But there must be a reasonable starting point. In Eli Lilly Canada Inc v Novopharm Ltd , 2008 FCA 287 , 381 NR 93 [ Eli Lilly ], the Court of Appeal quotes with approval a definition of what constitutes a fishing expedition which came from the reasons of Madam Prothonotary Tabib in that case. The Court of Appeal notes that her understanding of the " “train of inquiry test” " has been enunciated in Peruvian Guano ( Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 [ Peruvian Guano ] ) and followed thereafter.

The Court of Appeal quotes at paragraph 61 Madam Prothonotary Tabib and declares that it has been correctly stated: 19. In other words, it is not sufficient for a document to merely relate to the facts at issue. If, for example, a document can only reasonably be construed as supporting the disclosing party’s case, and cannot be shown to lead to information that would reasonably be supposed to be helpful to its opponent, then it need not be disclosed in an affidavit of documents.

A document which is neutral and can only reasonably be supposed to lead to other similarly neutral documents is not relevant for the purpose of an affidavit of documents. And on a motion for a further and better affidavit of documents, the reasonable possibility that a document can have or lead to one of the desired effects must be established by the moving party. To say that a document might conceivably lead to other documents, which, although not in themselves relevant, might then conceivably lead to useable information, is not enough.

It is precisely the type of fishing expedition which the jurisprudence of this Court consistently refused to sanction . That is not to say that the moving party must establish that the document

sought will necessarily lead to useable information: a reasonable likelihood will suffice; an outside chance will not . [My emphasis.] [ 22 ] The " “reasonable likelihood” " has continued to find favour.

In Lehigh Cement ( supra ), a case which dealt with rule 240, the Court of Appeal put the test thusly: [34] The jurisprudence establishes that a question is relevant when there is a reasonable likelihood that it might elicit information which may directly or indirectly enable the party seeking the answer to advance its case or to damage the case of its adversary, or which fairly might lead to a train of inquiry that may either advance the questioning party’s case or damage the case of its adversary. Whether this test is met will depend on the allegations the questioning party seeks to establish or refute.

See Eurocopter at paragraph 10 , Eli Lilly Canada Inc. v. Novopharm Ltd. , 2008 FCA 287 , 381 N.R. 93 at paragraphs 61 to 64 ; Bristol-Myers Squibb Co. v. Apotex Inc. at paragraphs 30 to 33. [35] Where relevance is established the Court retains discretion to disallow a question. The exercise of this discretion requires a weighing of the potential value of the answer against the risk that a party is abusing the discovery process . See Bristol-Myers Squibb Co. v. Apotex Inc. at paragraph 34.

The Court might disallow a relevant question where responding to it would place undue hardship on the answering party, where there are other means of obtaining the information sought, or where “the question forms part of a ‘fishing expedition’ of vague and far-reaching scope” Merck & Co. v. Apotex Inc. , 2003 FCA 438 , 312 N.R. 273 at paragraph 10 ; Apotex Inc. v.

Wellcome Foundation Ltd. , 2008 FCA 131 , 166 A.C.W.S. (3d) 850 at paragraph 3 . [My emphasis.] [ 23 ] The oft-quoted definition of a " “fishing expedition” " is that of Lord Esher, the Master of the Rolls, in Hennessy v Wright (No. 2) (1980), 24 Q.B.D. 445, at p. 448 where he posits that one has a fishing expedition where " “… the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present” " .

More recently, the Court of Appeal characterized a fishing expedition as " “a search by an empty-handed party looking for something to grasp onto” " and " “a question of mixed fact and law heavily suffused by facts” " ( Imperial Manufacturing Group Inc v Decor Grates Incorporated , 2015 FCA 100 , at para 7 ). [ 24 ] It seems to me that the items under review are the very epitome of an attempt at a fishing expedition. The plaintiff has put its claim at its highest by stating that " “(w)hat might not appear relevant at first glance can become quite relevant once one has the full picture” " (factum, para 1).

It is still way too low. It seems that the plaintiff situates relevance in an ex post facto way; the relevance is assessed after questions have been answered, not ex ante. If that is the case, CCM is right that there is no limit to what may be compelled on discovery. Information coming from " “ after the claim date of Bauer’s patents can eventually be relevant to the obviousness allegations raised by CCM” " (factum, para 3). But there is no indication whatsoever why. There is no foundation.

The test is reasonable likelihood that it might elicit information, while the plaintiff claims that the test is that " “(i)t is simply impossible to conclude that these questions have no reasonable chance of eliciting information that the judge could eventually find relevant at trial” " (factum, para 7). This does not constitute the recognized test. It is for Bauer to show the reasonable likelihood that a question might elicit information. The test requires more.

It requires the reasonable likelihood, not merely that it be impossible that there is no reasonable chance (i.e. possibility) to find something that a judge could eventually find relevant. This is, at best, an outside chance. To quote again Madam Prothonotary Tabib, as endorsed by the Court of Appeal in Eli Lilly ( supra ): 19. […] To say that a document might conceivably lead to other documents, which, although not in themselves relevant, might then conceivably lead to useable information, is not enough.

It is precisely the type of fishing expedition which the jurisprudence of this Court consistently refused to sanction.

That is not to say that the moving party must establish that the document sought will necessarily lead to useable information: a reasonable likelihood will suffice; an outside chance will not . [My emphasis.] The plaintiff has described fairly its effort in this case at paragraphs 1, 3, 7, 38 and 39 of its factum: but it has described the " “outside chance” " , not the reasonable likelihood. [ 25 ] The respondent has also contented that Bauer is prevented from pressing the matter because it does not qualify under rule 240.

Not only it wishes to conduct a fishing expedition, but the plaintiff’s questions must be " “relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party” " . Objections can be made if " “the question is not relevant to any unadmitted allegation of fact in a pleading …” " (rule 242(1)(b)) or " “the question is unreasonable or unnecessary” " (rule 242(1)(c)). In Reading & Bates Construction Co. v. Baker Energy Resources Corp. , [1988] 24 CPR (3 rd ) 66 [ Reading & Bates ], our Court put the issue in the following way, at p. 71: 3.

The propriety of any question on discovery must be determined on the basis of its relevance to the facts pleaded in the statement of claim as constituting the cause of action rather than on its relevance to facts which the plaintiff proposes to prove to establish the facts constituting the cause of action.

Additionally, where a reference has been directed, the application of Rule 465(15) requires that the answers on discovery be restricted to questions as to facts that may prove or tend to prove or disprove or tend to disprove any unadmitted allegation of fact placed in issue on the reference: Armstrong Cork Canada Ltd. v. Domco Industries Ltd. (1983), 71 C.P.R. (2d) 5 (F.C.A.) . [ 26 ] In the case at hand, that poses in my view two difficulties for the plaintiff. First, as admitted at the hearing, there is nothing in the pleadings that could be used as a hook to bring the items within rule 240.

At this stage, this appears to be an afterthought that came during the examination for discovery. [ 27 ] Second, it has not been established what the relevance of the items may be. In R. v Jackson , 2015 ONCA 832 [ Jackson ], the

Ontario Court of Appeal (per Watt JA) gave what is perhaps one of the better exposé on the notion of relevance. Relevance appears to bewell known because it is used so frequently, yet it has its limitations. Not everything and anything is relevant: The Meaning of “Relevant” and “Relevance” [119] The terms “relevant” and “relevance” are old friends of the law of evidence. Familiar faces. Constant companions.We know them well enough to say several things about them without being critical in any way. [120] Relevance is not a legal concept. It is a matter of everyday experience and common sense.

It is not an inherentcharacteristic of any item of evidence. Some have it. Others lack it. [121] Relevance is relative. It posits a relationship between an item of evidence and the proposition of fact the proponent ofthe evidence seeks to prove (or disprove) by its introduction. There is no relevance in the air: R. v. Luciano, 2011 ONCA 89,267 C.C.C. (3d) 16, at paras. 204-5. [122] Relevance is also contextual. It is assessed in the context of the entire case and the positions of counsel.

Relevancedemands a determination of whether, as a matter of human experience and logic, the existence of a particular fact, directly orindirectly, makes the existence or non-existence of another fact more probable than it would be otherwise: R. v.

Cloutier, (SCC), [1979] 2 S.C.R. 709, at p. 731. [123] The law of evidence knows no degrees of relevance, despite the frequent appearance of descriptives like “minimally,marginally or doubtfully”, “tangentially” and “highly” that tag along for the ride from time to time. [My emphasis.] [28] What is missing at this stage are the two elements of the proposition presented at paragraph 122 of Jackson. If it is true that it is"“the existence of a particular fact”" which "“makes the evidence or non-existence of another fact more probable”," then both elementsof that proposition are missing on this record.

There is no way of establishing the relationship between the two elements of theproposition because we do not know what they are. The plaintiff is asking for anything, not because it will make the existence ofsomething more probable (the plaintiff is not seeking to prove the non-existence of something in this case), but rather in the hope offinding something that will be relevant. Not only does that show that this constitutes a fishing expedition, but it also demonstrates that theitems have not been shown to be relevant. [29] Of course, "“fishing expedition”" and "“relevance”" are close cousins.

In Grand River Enterprises Six Nations Ltd. v Canada, 2011FCA 121, the Court of Appeal considered the relevance of the questions and ended up concluding that the questions constituted a fishingexpedition: [10] In my view, the Judge committed no error in finding the requested list and the requested answer to be irrelevant and theinquiries to be in the nature of a fishing expedition. I reach this conclusion by a different route from that taken by the Judgeduring the hearing. My reasons for this conclusion are as follows.

The factual matrix appears to have been very similar to our case as the questions asked were for a purpose in the nature of supportingsuspicions: [11] The basis for Grand River’s request is that it “suspects, but does not know” that there are First Nation tobaccomanufacturers who are licensed under the Act but who do not pay excise duty on all their tobacco products. … That made the Court conclude as follows: [15] The requested list is said by the appellant to be necessary in order to lead it to product samples and packaging fromother tobacco manufacturers and to information about the other manufacturers’ customer base.

Such evidence is not soughtfor the purpose of arguing any differential treatment of similarly situated taxpayers, but to inform the

interpretation of thegoverning legislation, particularly whether Grand River’s cigarettes and fine cut tobacco are “packaged” within the meaningof the Act. Assuming that to be a proper purpose in this case, in the absence of some evidence from Grand River in supportof its suspicion, the requested list has not been shown to be likely to advance Grand River's case or to damage the Crown’scase.

This is because the only relevant evidence before the Court is the Crown’s unequivocal evidence on discovery that “alllicensed tobacco manufacturers pay excise duty on their tobacco products at the time their products are packaged in similarpackages as those of the Appellant.” In the absence of some evidence from which an inference may be drawn that somelicensed manufacturers are not paying excise duty on their tobacco products at the time their products are packaged inpackages similar to those of the appellant, the Judge correctly considered Grand Rivers’ requests to amount to a fishingexpedition. [My emphasis.] [30] In the instant case, and as pointed out before, the plaintiff hopes that what it is asking for "“can eventually be relevant to theobviousness allegations raised by CCM”" (factum, para 3).

Because Bauer does not know what it is looking for, its questions are bothirrelevant and constitute a fishing expedition. [31] Item 45 was excluded because, as phrased, it is overbroad. It seeks any and all reports concerning components of helmets regardlessof relevance. There is no palpable and overriding error in refusing this item. [32] Item 46 was included to the extent the documents sought refer to the helmet "“Resistance”" and the rotational impacts during yearsproceeding the invention date. The Prothonotary considered relevant the document before the invention date.

On the record before theCourt, there is no palpable and overriding error.

[ 33 ] Items 63 and 69 are excluded because they are overbroad and constitute a fishing expedition, as the questions are asked. Concerning item 63, Madam Prothonotary Tabib does not deny production (design briefs) of other products after the invention date, but rather finds that " “no foundation has been laid to seek production in respect of all helmets regardless of the date of development. The fact that the defendant might rely on certain documents does not establish relevance of all similar documents or the irrespective [ sic ] of the date at which the work was done. So it’s overbroad as requested.

No foundation laid” " . The same is said with respect to item 69: " “as asked” " , it was said to be overbroad. It is asking to " “produce any other drawings that were made by CCM concerning how the pods or any other components would be displayed or assembled in the RESISTANCE helmet” " . More generally, claiming that products developed after the invention date without any foundation as to relevance might generate something that may prove to be relevant is the very demonstration that what is being sought is not relevant and constitutes the proverbial " “fishing expedition” " that is prohibited.

Neither the Case Management Judge nor I would declare that evidence past the invention date is irrelevant and constitutes a fishing expedition (see Teva Canada Limited v Pfizer Canada Inc. , 2019 FCA 15 , at para 35 ) . Rather, it is the fact that overbroad questions without proper foundation that constitute a fishing expedition that make them objectionable. As put in Reading & Bates (supra): 6.

The ambit of questions on discovery must be restricted to unadmitted allegations of fact in the pleadings, and fishing expeditions by way of a vague, far-reaching or an irrelevant line of questioning are to be discouraged: Carnation Foods Co. Ltd. v. Amfac Foods Inc. (1982), 63 C.P.R. (2d) 203 (F.C.A.) ; and Beloit Ltee/Ltd. v.

Valmet Oy (1981), 60 C.P.R. (2d) 145 (F.C.T.D.) . [ 34 ] Item 32 deals with employees of CCM (designers and technicians); CCM agreed reluctantly to provide the information concerning employees in the 10/11/12 time frame, after the Case Management Judge had signaled the danger of going overbroad. With a proper foundation, it may have been that the question could have been ruled proper. On this record, it has not been shown that there is a palpable and overriding error. Again, as framed, the item may look like a fishing expedition and that is the conclusion reached.

In other cases, the expedition concerned documents: here, it is about employees or past employees. On this record, there is not a sufficient argument to disturb the finding. [ 35 ] As has often been said, the determination of what constitutes a proper question on examination for discovery is highly factual. In this case, the Case Management Judge concluded that some questions were not relevant, especially where an appropriate foundation had not already been established.

At the hearing of this case, counsel tried to argue that he might get, out of the development of the progeny of the Resistance helmet, something factual that might help to show that CCM wrestled to come up with helmets that, although infringing on its patents, was difficult to arrive at, thus showing a lack of obviousness. Counsel was incapable of articulating for the Court what that could be, and indeed why CCM would spend on developing a helmet they could copy simply by " “re-engineering” " the Bauer helmet.

The development of a different helmet may be motivated by many factors, including developing a new and different product. Without the establishment of some foundation, it appeared clear that the whole effort was in the nature of a fishing expedition. IV. Costs [ 36 ] CCM sought enhanced costs if it prevails on the motion. It claims that Bauer refused its offer to discontinue its motion, which, it argues, was not connected to the pleadings and in spite of the fact that Bauer had already benefitted from a broad, discretionary ruling by the Case Management Judge.

As a result, CCM bases its calculation using the top of column IV and doubles its fees pursuant to rule 400(3)(e). [ 37 ] The Court indicated at the hearing that it was not prepared to follow the defendant. There is in my view nothing unusual in Bauer bringing this matter to the Court such that it should depart from rule 407. In the end, the parties were in agreement that a lump sum as determined by the Court would be the better way of establishing the costs. In the circumstances, a lump sum of $3,250, inclusive of disbursements and taxes, is appropriate. ORDER in T-123-15 THIS COURT’S JUDGMENT is that : 1 .

The appeal of the order of the Case Management Judge of October 22, 2019, with respect to items 32, 45, 46, 63 and 69 is dismissed. 2 . Costs in the amount of $3,250, inclusive of disbursements and taxes, are ordered in favour of the Defendant Sport Maska Inc., d.b.a. CCM Hockey. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-123-15

STYLE OF CAUSE: BAUER HOCKEY LTD. v SPORT MASKA INC. D.B.A. CCM HOCKEY PLACE OF HEARING: MONTRÉAL, QUÉBEC DATE OF HEARING: november 26, 2019 ORDER AND REASONS: ROY J. DATED: DECEMBER 11, 2019 APPEARANCES : Jean-Sébastien Dupont Julie E. Larouche For The PLAINTIFF/ DEFENDANT BY COUNTERCLAIM Alexander Camenzid Erin Creber For The defendant/ PLAINTIFF BY COUNTERCLAIM SOLICITORS OF RECORD : Smart & Biggar LLP Barristers & Solicitors Montréal, Québec For The PLAINTIFF/ DEFENDANT BY COUNTERCLAIM Gowling WLG (Canada) LLP Barristers & Solicitors Ottawa, Ontario For The defendant/ PLAINTIFF BY COUNTERCLAIM