Court transcript Part 4 pages 38 to 46
19 THE COURT: Mr. Lunny?
20 MR. LUNNY:
21 MR. BOWES: I take it --
22 MR. LUNNY: I have no objection to Mr. Cumming
23 staying, of course.
25 DANIEL ROSS LEWIS, a witness
26 on behalf of the Defendants,
27 having been duly sworn, testifies
28 as follows:
29
30 THE REGISTRAR: Please state your full name and spell
31 your last name for the record, sir.
32 A Daniel Ross Lewis, L-e-w-i-s.
33 THE REGISTRAR: Thank you, sir. You may be seated, if
34 you wish.
35
36 CROSS-EXAMINATION BY MR. LUNNY:
37
38 Q Mr. Lewis, did you bring your file with you
39 today?
40 A I did.
41 Q Okay. Can you produce it for me, please.
42 You reviewed it before coming here today?
43 A Pardon?
44 Q I take it you reviewed it before coming here
45 today?
46 A Oh, I've been looking at it, yeah.
47 Q Okay. Maybe I'll have a look at it as we go
48 through.
39
1 I take it your big books are somewhere, too.
2 Are they in the office?
3 A Yeah. I just brought --. I only brought the
4 latest one. The other ones are mainly on
5 electronic format now, but --. I brought that
6 one, as well, which is the latest version of the
7 manual.
8 Q That's helpful.
9 When were you contacted --. Well, let me
10 put it this way: I understand from the evidence
11 given by Mr. Cumming that you were contacted
12 sometime after the judgment in the case had come
13 down to do the work that resulted in this book;
14 is that correct?
15 A Basically, yes.
16 Q Okay. Can you tell me when that was?
17 A I'll just look at my --. Let me look back at the
18 file here and see when we started.
19 The first note I have here is from the 4th
20 of February.
21 Q Okay.
22 A So it would have been sometime prior to that.
23 Q And I --. And you correct me if my -- if I'm
24 wrong at all, but I also understand that Stothert
25 Engineering had essentially little to do for
26 Thermo Tech Technologies Inc. in the time period
27 before being retained for this project, back to
28 1994 or so; is that correct?
29 A Yeah. We've kept in touch with them, but we
30 haven't provided any -- any significant services
31 through until the beginning of this year.
32 Q All right. So --. And I take it you understand
33 that considerable engineering work has been done
34 for the Thermo Tech companies by other
35 engineering firms in the interim?
36 A I'm aware of that, yes.
37 Q Okay. What is it, Mr. Lewis, that you read and
38 reviewed and perused and relied upon prior to
39 giving us your affidavit of March 11, 1998?
40 A I read through the licence agreement with the --
41 is it plaintiff?
42 Q Yes. That will do.
43 A Okay. And I read through the judgment that was
44 given, and I also -- I'm trying to think what
45 else I read. Licence agreement and the judgment,
46 and those were the two main documents.
47 Q Can you think of anything else?
48 A Well, I talked to Thermo Tech and asked them, you
40
1 know, what they had and looked at our own files.
2 We had some files that dated back to when we
3 had --. We had produced the first technical
4 manual and done the revision of the second, and
5 this was the third, so we've done all of the
6 revisions of that, so I read through that.
7 Q Okay. Did you attend at the offices of Thermo
8 Tech to review the engineering drawings and
9 specifications in their possession?
10 A No.
11 Q All right.
12 A Not prior to that. We did --. We do have some
13 drawings from them, but that's not -- not
14 relevant here.
15 Q No. I'm just trying to establish, sir, that you
16 yourself did not review the engineering
17 specifications provided for Thermo Tech by, for
18 example, Sandwell Inc.?
19 A Sandwell? No, I'm not aware of that.
20 Q Did you review the engineering drawings and
21 specifications provided by Stanley Engineering?
22 A I have seen some drawings and specifications from
23 Stanley, when they were initially done.
24 Q But not since then?
25 A Not --. I don't remember what year it was, but
26 it was -- I think that was when they were
27 building the plant in Corinth. They asked me to
28 look at some of the work that was done at that
29 time.
30 Q Okay. Did you review the Dick Engineering
31 engineering --
32 A Yes.
33 Q -- drawings?
34 A Yeah. We're currently doing another project for
35 Thermo Tech, acting as owner's engineer, --
36 Q Okay.
37 A -- for the Richmond plant.
38 Q No. I'm talking about prior to --. I'm not --.
39 I know that you're doing that -- you've just
40 recently been appointed as the engineer to help
41 build the plant in Richmond; is that right?
42 A That's right. But we --
43 Q Okay.
44 A We had the Dick Engineering drawings before this
45 submission.
46 Q Okay. So you reviewed them prior to giving your
47 opinion here?
48 A Yes.
41
1 Q Can you produce those for me, please.
2 A Produce which?
3 Q The Dick Engineering drawings.
4 A Well, I couldn't carry them all over.
5 Q All right.
6 A I can produce them if you like, but --
7 Q But you weren't asked to bring the drawings that
8 you'd reviewed in order to --
9 A We were asked to bring the file, and so I've
10 brought the file.
11 Q All right. Do those -- those --. Let me just
12 ask you: The engineering specifications and
13 drawings that we've referred to, in terms of
14 Stanley Engineering and Dick Engineering, relate
15 to thermophilic plants, do they not?
16 A Yeah. But they're for the construction of
17 thermophilic plants.
18 Q I understand. The design or the construction of
19 thermophilic plants, correct?
20 A Um-hum.
21 Q Is that right?
22 A Yes.
23 Q Okay. Now, when you -- is there a letter that
24 sets out what you were asked to do with respect
25 to producing this new booklet?
26 A No.
27 Q It was all done orally?
28 A It was done orally. They asked -- they had
29 basically asked if we could update the manual.
30 Well, first of all, we talked about what the
31 judge's order was, and I read through the -- read
32 through the order, and it specifically -- this
33 manual was specifically addressed to transfer
34 technology to the licensee. And that was
35 basically what we interpreted. The judge took
36 exception to the specifications that dealt with
37 the construction of plants and the sourcing of
38 equipment, and so anything that had to do with
39 that, we -- this was what was remaining after
40 that was accepted.
41 Q Now, when you say "took exception" to the
42 construction, --
43 A Well, in the judge's order, there was some --
44 there was an exception that what-- what wasn't
45 included to be transferred.
46 Q Okay. Maybe I can just get you to point that out
47 for me, sir.
48 This is a reference at --. Maybe I can just
42
1 give you this one.
2 A Okay.
3 Q A reference to environmental assessment reports,
4 cost assessment reports, and documentation
5 regarding the specifications and sourcing the
6 equipment?
7 A That's right. And so basically, that stuff fell
8 into the category of specifications of sourcing
9 of equipment used in the construction of
10 thermophilic plants.
11 Q Okay.
12 A So I would consider, you know, construction
13 drawings to fall into that category.
14 Q What about design drawings? They wouldn't fall
15 into that --
16 A Yes.
17 Q -- category.
18 A Those are --. That's what that is for.
19 Q It doesn't say design drawings here, does it?
20 A It says drawings for the construction.
21 Specifications for the construction.
22 Q It doesn't say drawings for the construction,
23 does it?
24 A Sorry?
25 Q It doesn't say drawings for the construction.
26 A Well, let me read that again, if you wouldn't
27 mind.
28 It says, "All documentation regarding the
29 specifications and sourcing of equipment used in
30 the construction of thermophilic plants." I
31 would consider that to include design drawings.
32 Q Okay. So if design drawings and construction
33 drawings are excluded, what's left?
34 A The technology transfer manual, which is -- which
35 was provided.
36 Q Technology transfer manual, is that a new name
37 for it? We've --
38 A No.
39 Q -- called it --
40 A That's basically what the title is, but it
41 basically defines the specifications and the
42 details of the equipment required to build the
43 plant. Build a Thermo Tech plant.
44 Q Okay. Prior to giving your affidavit, sir, did
45 you read the affidavits that had previously been
46 filed in the proceedings?
47 A What are you talk --. Which ones are you
48 referring to?
43
1 Q Well, there's Mr. Lis's affidavit.
2 A No, I haven't read Mr. Lis's affidavit.
3 Q Mr. Branconnier's affidavits?
4 A No, I haven't read his.
5 Q Mr. Hole's affidavits?
6 A No, I haven't read his.
7 Q Okay. Have you read the statement of defence in
8 this case?
9 A No.
10 Q When did you really stop actively working for
11 Thermo Tech?
12 A The last work we did for them prior to this year
13 was back in -- the last time when Stanley was
14 preparing the drawings for Corinth.
15 Q 1993?
16 A Something about that time. But as I say, we've
17 kept in touch with them, but -- we made a
18 proposal to them sort of about '96 or so, but
19 that was the last time.
20 Q So you --. I mean, it's fair to say that you
21 haven't actually provided consulting and
22 engineering services to Thermo Tech over the past
23 nine years, correct?
24 A Not very much, no.
25 Q All right. It's fair to say that you haven't
26 been --
27 A Well, nine years -- it's not -- it's not nine
28 years. It's '98 now.
29 Q All right.
30 A That would be five years.
31 Q Okay. So you haven't actually provided
32 consulting and engineering services to Thermo
33 Tech over the past five years?
34 A That's right.
35 Q All right. And, therefore, you haven't been
36 there throughout and had personal knowledge of
37 what was developed in Thermo Tech over the past
38 five years, correct?
39 A We have been involved in sort of a peripheral
40 manner. We were involved --. One of our fellows
41 was involved in providing some assistance to
42 them. I think when they were -- when they opened
43 up the plant in either Hamilton or Brampton, I
44 can't remember, we attended there.
45 Q You haven't?
46 A No, I haven't. No.
47 Q All right. You haven't been working for Thermo
48 Tech for the last five years, doing all this
44
1 stuff, if I -- if you know?
2 A No, we haven't been providing the engineering for
3 them, that's for sure.
4 Q All right. Now, I have a copy -- and this is
5 Exhibit A to the affidavit -- I think it's
6 Exhibit A to the affidavit of Mr. Harlan. This
7 is the original Trooper Technologies -- the
8 original booklet given to Trooper Technologies.
9 A What's the date of that?
10 Q This is 24th of November 1992.
11 A Okay. That's Revision 1.
12 Q We'd better make sure it says that on it.
13 A I think.
14 Q It says current revision number 8.
15 A Hm? No, there's something wrong there.
16 Q Well, somebody -- somebody wrote that in. I'll
17 show you that.
18 MR. LUNNY: And, my lord, if you might -- you might
19 try and have that in front of you.
20 A That's Revision 1.
21 Q Oh, I'm sorry. So it's somewhat inaccurately --
22 A It's in the -- yeah.
23 Q It may be accurate. Maybe they meant to indicate
24 this is copy number 8 or something.
25 A Yes. I think so.
26 Q Okay.
27 THE COURT: Which document is that, I'm sorry?
28 A That's --
29 MR. LUNNY: It's --
30 A It's been circled incorrectly.
31 MR. LUNNY: It's the document that starts "open up
32 with a proprietary right and confidentiality
33 agreement."
34 Is it --. Is it there, my lord?
35 THE COURT: Yes.
36 MR. LUNNY: Okay.
37 Q So this is the one that was in -- transferred to
38 the plaintiff, as far as we know, in 1992, --
39 A That's --
40 Q -- correct?
41 A As far as I know, yes.
42 Q And you prepared this?
43 A Yes. We prepared the -- we didn't prepare the
44 first document; we --
45 Q No, the agreement.
46 A We prepared the -- all the technical sections
47 here, starting from the -- basically, the title
48 page there.
45
1 Q Okay. And which parts of this do you say are
2 standard certified engineering specifications?
3 A Well, okay. When you get into the -- into the
4 details in --. If you go through the manual,
5 section 1 is an introduction, section 2 is
6 background information on the process, section 3
7 is a process description that describes how the
8 process works, and there are specifications in
9 there dealing with the various aspects of the
10 process. But if you get into section -- section
11 4 Application, section 5 -- section 5 is the
12 Equipment Selection and Design, that defines the
13 equipment and the details of equipment for the
14 process.
15 Q Okay. Which parts do you say are standard
16 certified engineering specifications?
17 A Well, basically, the whole thing is a
18 specification for the Thermo Tech process.
19 Q Okay. And where's the standard certified?
20 A Well, I mean, that --
21 Q In which spots?
22 A That is a --. That's a term that could apply for
23 just about anything. You know, it's -- it's not
24 a standard engineering term.
25 Q Well, a certified engineering specification.
26 A Yeah, a certified engineering specification,
27 yes, --
28 Q I see.
29 A -- but not a standard certified engineering
30 specification.
31 Q Okay. There aren't any certified engineering
32 specifications in there, are there?
33 A Yes. This --. This section here is the
34 specification for the Thermo Tech process.
35 Q What section are you referring to?
36 A This is --. Well, section 5 in particular,
37 defines the equipment, section 6 defines the
38 control section, section 7 defines the operation.
39 Those are the specifications for the process.
40 Q Okay. And where's the certification?
41 A Hm?
42 Q Where's the certification?
43 A Where is the certification? There was a letter
44 that was attached to the beginning of this
45 document when it was transferred, and I had a --
46 they had actually asked me a copy of that, asked
47 me for a copy of that, and we had affixed a
48 certification letter to the beginning of that
46
1 document when it was first issued, and that is --
2 I had to go through the archives to find it here,
3 and basically, it says here, "I have assisted in
4 the preparation --" this was a -- this was a
5 letter to Thermo Tech, dated 1989: "I have
6 assisted in the preparation of the technical
7 manual Rev. 0, dated the 22nd of 11/89, for
8 Thermo Tech's thermophilic digestion process, and
9 I have reviewed the licence agreement dated the
10 24th of May 1989 between Thermo Tech Waste
11 Systems and U.S. Thermo Corp. With regard to
12 section 2.03 of the agreement, my opinion is that
13 the contents of the technical manual provides the
14 specifications, know how and process flow
15 information reasonably necessary to utilize,
16 supply and market the process and construct
17 plants capable of processing the following
18 products," and it lists four products. "Yours
19 truly."
20 So that's a certification.
21 Q Yes, but that certification -- that's not a
22 certification relating to this manual that you've
23 got in front of you; that's a certification
24 relating to a different licence agreement, isn't
25 it?
26 A Well, it's the same document. It's the same --.
27 You know, it's Revision 1 of the same document.
28 We did the revision.
29 Q There's no certification in the manual, correct?
30 A Sorry?
31 Q There's no certification in the manual?
32 A I don't know. I haven't seen this one before.
33 Q Okay. Well, maybe you can look at it.
34 A I mean, on an engineering drawing, the
35 certification goes on the -- goes on the copy, or
36 it can go on the original, depending what it is.
37 Q Okay. Would you pull out that letter for us.
38 I'd like to mark that.
39 A It's in my file here.
40 Q Yes. I don't --
41 A And this is a --. This is a --. This is a copy
42 of -- off of -- out of our electronic file. I
43 don't have a copy of the original, but it's in
44 here. Do you want me to take it out of here?
45 Q Yes, please.
46 A Okay.
47 Q If you would.
48 THE COURT: Mr. Lunny, I'm going to have that marked |
