• Motion on additional read-ins allowed in part; hearsay excluded
  • July 20, 2017 | Authors: Chantal Saunders; Adrian J. Howard
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Motion on additional read-ins allowed in part; hearsay excluded

    Excalibre Oil Tools Ltd. v. Advantage Products Inc., 2016 FC 1130

    In this patent infringement action, the plaintiffs disputed some of the defendant's proposed read-ins. The Court confirmed that the rules permit a party to rely on answers given during discovery of an adverse party as evidence for trial. Furthermore, additional portions of the discovery can be included if they properly qualify the answers given.

    The Court considered the jurisprudence, and held that it is appropriate to put into evidence any other parts reasonably connected to portions of the examination already put into evidence. In considering whether parts are reasonably connected, the Court may consider the continuity of thought or subject matter, the purpose of introducing the evidence in the first instance, and fairness to ensure that the evidence, as much as possible, represents the complete answer on the subject matter of the inquiry. Another way of phrasing these additions, is to refer to "contextualisation". Anything that puts what a party proposes to introduce into context, whether by way of explanation, amplification, contradiction, or qualification, is all contextualisation.

    Certain additional read-ins were allowed and others were excluded on this basis. Both initial proposed read-ins and additional read-ins were excluded on the basis of hearsay.