Court Transcript Part 5 pages 47 to 55
47
1 as the first exhibit in this proceeding, and then
2 we're taking the break.
3 MR. LUNNY: Thank you.
4 MR. BOWES: Just for the record, my lord, that letter
5 was attached to the front of the manual that was
6 handed to you on the morning you granted your
7 judgment. The actual copy of the letter, as
8 opposed to the file copy.
9 MR. LUNNY: Well, the only problem I have with that is
10 that when you produced that on the morning of the
11 judgment, that wasn't the manual that was given
12 to my clients.
13 Yes. Might this be marked, my lord.
14 THE REGISTRAR: Exhibit 1.
15
16 EXHIBIT 1: Certification Letter from File of
17 Mr. Lewis
18
19 (WITNESS STOOD DOWN)
20
21 THE REGISTRAR: Order in court. Chambers stands
22 adjourned until 2:00.
23
24 (PROCEEDINGS ADJOURNED @ 12:32 p.m.)
25 (PROCEEDINGS RESUMED @ 2:02 p.m.)
26
27 THE REGISTRAR: Order in chambers.
28
29 DANIEL ROSS LEWIS, Resumed:
30
31 CROSS-EXAMINATION CONTINUED BY MR. LUNNY:
32
33 Q Mr. Lewis, the exhibit that we've just marked as
34 Exhibit A, and you'll maybe just be able to
35 recall this, dealt with a controversy regarding
36 another licence agreement other than the Eastern
37 European Licence Agreement; is that correct?
38 A Yeah. This was very early in their -- in their
39 programme. They didn't have enough sort of
40 documentation to transfer technology to -- to the
41 licensee, or the licensee was concerned about how
42 much they had. So we basically prepared --
43 Stothert prepared that document in order to
44 comply with the requirements of the technology
45 transfer.
46 Q And requirements of that particular licence
47 agreement?
48 A Yes. That's right.
48
1 Q All right. The document that we've referred to
2 as the design criteria manual that was provided
3 to the plaintiffs, you've described as Revision
4 1. What's the difference between the original
5 and Revision 1? What are the main differences?
6 A I don't recall exactly what the differences are.
7 There was --. There would have been some minor
8 changes in terms of the process, because the
9 original document was prepared in 1989, and in
10 1992, I think at that point they had constructed
11 some additional facilities, so it had some
12 additional operating experience, which would have
13 been reflected in the manual.
14 Q Okay.
15 A As I recall, there were some changes -- I think
16 some of the metallurgy changed. In the original
17 manual, there was some reference to allowing
18 carbon steel in some of the equipment, and that
19 was deleted because of some problems with
20 corrosion that hadn't been anticipated in the
21 original design.
22 Q Okay. And what are the changes from Revision 1
23 that you've incorporated in the present volume
24 that you delivered to this court?
25 A There is a number of minor revisions, mainly --
26 mainly operating related. They deal with the
27 control philosophy of running the plant. It's
28 been simplified from what the original concept
29 was. Some of the requirements for monitoring
30 process conditions have been reduced, in that it
31 was determined, after operating experience, that
32 they weren't an essential element of the control.
33 I think there have been some -- some minor
34 changes in equipment design. Some of the heat
35 exchange coils system in the digesters have been
36 revised. There was a revision to the --
37 basically, to the process flow sheet in mass
38 balance.
39 Q Okay.
40 A Again, reflecting, you know, operating experience
41 with the plant.
42 Q Sure. But all of those revisions -- and I think
43 you accept that on the scale of things, they're
44 minor revisions -- were made by you after you'd
45 been contacted by Thermo Tech following the
46 original judgment in this case, correct?
47 A That's right.
48 Q All right.
49
1 A Yeah. I think the -- I mean, obviously they were
2 in Thermo Tech's domain, and so we basically
3 asked them what changes have been made in their
4 process, they gave those to us, and we updated
5 the manual accordingly.
6 Q Are you familiar with the patents that Thermo
7 Tech owned?
8 A Yes. The one --
9 Q The original patents?
10 A Yeah. The original one by Coulthard and --
11 Q Yes.
12 A -- et al.
13 Q Yes. And do you accept that the process as
14 disclosed in this manual, design criteria manual
15 of 1992, isn't a tracking of the Coulthard
16 patent?
17 Correct?
18 A How do you mean, it isn't a tracking?
19 Q Well, it goes beyond the Coulthard patent. It
20 includes other process features not --
21 A Basically, know-how in order to use the process,
22 yes.
23 Q Yes. But that know-how includes a process, for
24 example, that isn't contemplated by the Coulthard
25 patent. For example, it uses heat coils,
26 external heat sources, whereas a feature of the
27 Coulthard patent which makes it patentable is
28 that there's no external heat employed. Isn't
29 that correct?
30 A Well, the coils are both for heating and cooling.
31 Q Of course.
32 A So there is --
33 Q Heating and cooling.
34 A There is the -- there is the ability to do both,
35 and in some cases --. So I understand. I mean,
36 I haven't run one of the plants. In some cases,
37 you need to cool it; in some cases you need to
38 heat it to get it going.
39 Q Am I correct, though, in saying that the
40 Coulthard patent specifically excludes any
41 external heat source?
42 A Yeah. If you leave it long enough, the
43 thermophilic process will generate enough heat
44 just from the agitation in order to reach the
45 temperatures at which the thermophilic bacteria
46 will start to generate.
47 Q And the absence of any external heat source is a
48 feature of the Coulthard patent, correct?
50
1 A That's right.
2 Q Okay. Now, we touched on earlier the exclusion,
3 and I'm just going to read this, where the court
4 excluded specifications and sourcing of the
5 equipment used in the construction of
6 thermophilic plants. And I take it your view is
7 that there's no difference between the equipment
8 used in the construction of thermophilic plants
9 and the equipment used in thermophilic plants; is
10 that correct?
11 A Sorry, ask me that again?
12 Q Well, you seem to indicate that you excluded vast
13 amounts of material from production because of
14 this clause saying that the -- there was no need
15 to deliver specifications and sourcing --
16 A I think --. You've got to go back further in the
17 text, I think.
18 Q Okay. Well, let me put it this way: You
19 didn't -- you didn't regard it as necessary that
20 there be delivery of specifications and sourcing
21 of the equipment used in the construction of
22 thermophilic plants, correct?
23 A That's right.
24 Q Okay. So -- and I take it from your general
25 answer, that you don't see any differentiation
26 between the equipment used in the construction of
27 thermophilic plants and the equipment used in
28 thermophilic plants; you regard them as meaning
29 the same. Is that right?
30 A I guess you could interpret that one way or the
31 other. I mean, if you said equipment used in the
32 construction, you could include cranes, you could
33 include drills, you could include cement mixers.
34 Q Right.
35 A So there is a difference.
36 Q Okay. Now, let me ask you: Had there been no
37 such inclusion -- exclusion at all, had there
38 been no such exclusion of this nature, would you
39 have felt it necessary to deliver up a great deal
40 more in the way of certified engineering
41 specifications and drawings?
42 A Likely, yes.
43 Q All right. Because as it stands, with all due
44 respect to the work that you've done in putting
45 this new booklet together, it doesn't give the
46 plaintiffs a great deal more than they already
47 had, correct?
48 A That's basically what the licence agreement, as I
51
1 interpret it, said they should get.
2 Q Okay. Well, let's leave your interpretation
3 aside, but you'll agree that it doesn't give them
4 a lot more than they already had; is that
5 correct?
6 A It updates the information.
7 Q Are you agreeing with me? It doesn't give
8 them --
9 A There are changes.
10 Q Yes. But they're minor, aren't they?
11 A Some of them aren't so minor in the control
12 system.
13 Q All right. You're not agreeing with me, then?
14 You're just --
15 A Not completely, no.
16 Q All right. Now, I wonder if I can ask you to
17 look at some things that -- I know you haven't
18 read some of these affidavits, or all of them at
19 least before.
20 A It's Ross, by the way. I go by my second name.
21 Q I'm sorry.
22 And I want you to look at the statement of
23 defence which is at tab 1. Have you read this?
24 MR. LUNNY: This is --
25 A No.
26 MR. LUNNY: -- the green booklet, my lord. I think
27 I've handed one up.
28 Q You haven't read the statement of defence?
29 A No.
30 MR. BOWES: My lord, I don't have a copy of this
31 document to which my friend is referring. The
32 green booklet?
33 MR. LUNNY: Oh, I'm sorry. It was just put together
34 from our last chambers.
35 Q Now, if you go to page 3, paragraph 9, Mr. Lewis,
36 you'll see there that it's stated that the
37 defendants have advised that the plant technology
38 is currently undergoing redesign and
39 re-engineering to address environmental concerns.
40 That's the first part of paragraph 9.
41 A Um-hum.
42 Q And then in paragraph 10, it says, "The
43 defendants, and each of them, have therefore
44 advised the plaintiff that the re-engineering
45 drawings are currently being prepared with all
46 possible speed, however, they are not yet
47 available for delivery to the plaintiff."
48 I just want to ask you, I think we've got it
52
1 from your evidence already, that the reference to
2 the redesign and re-engineering and the
3 re-engineering drawings there, it's not a
4 reference to anything you were doing at that
5 time, is it?
6 A No.
7 Q Okay. Do you know what that is a reference to?
8 A No.
9 Q Paragraph 19 on page 4, I wonder if you can look
10 there. It states, Mr. Lewis, "In further answer
11 to the whole of the statement of claim herein,
12 the defendants, and each of them, state that the
13 certified engineering specifications and drawings
14 will be provided to the plaintiffs as soon as the
15 engineering drawings and specifications have been
16 completed and as soon as the plaintiffs can
17 satisfy the defendants as to the economic
18 viability of the proposed plants in Poland..."
19 And I won't carry on, but it does go on.
20 I take it that the materials that you
21 provided in this update are not the engineering
22 drawings and specifications that were then being
23 undertaken; is that correct?
24 A Well, this was dated December 30th, 1997. So it
25 couldn't have been.
26 Q It couldn't have been, that's right. However,
27 can you agree with me -- maybe you don't know the
28 answer, but can you agree with me that all of the
29 redesign and re-engineering that you're aware of
30 having taken place was in fact derived from -- in
31 other words, the design criteria manual was the
32 starting point for all of it?
33 A For all of the engineering that's been done on
34 the plants? I'm not certain that's --. It's the
35 origin, yes.
36 Q All right.
37 A I'm not sure that's in total.
38 Q So the starting point, for example, of the
39 re-engineering, redesign and upgrading of the
40 process which was currently ongoing with Dick
41 Engineering Ltd. was the design criteria manual?
42 A No. But I think you have to understand that this
43 design criteria manual is the -- it basically
44 reflects changes; it doesn't -- it isn't the
45 source of all changes. The manual is updated
46 when and where, you know, the improvements have
47 been designed, or the changes have been made, and
48 then it's reflected in the manual. So it isn't
53
1 the --. It was the origin when the -- when the
2 original plants were being designed, but again,
3 the origin of the information here came from
4 Thermo Tech. We didn't --. We didn't develop
5 the information ourselves. So obviously, there's
6 a parallel line, and this is reflecting
7 information as it's developed by Thermo Tech.
8 And there can be a delay; for example, the last
9 revision was 1992. So there's a delay of about
10 six years, then, for updating.
11 Q Have you included in the new design criteria
12 manual all of the improvements that took place,
13 or are you saying you only included the ones that
14 Thermo Tech gave to you, if I can put it that
15 way?
16 A That's right. We didn't --. All we had was
17 information that was provided by Thermo Tech.
18 Q Okay. And who gave you that information?
19 A I got some information from Dan Cumming. We
20 worked with Kathy Koellner, who -- I guess she's
21 in Edmonton. She basically went through the
22 manual with us and gave us the revisions to the
23 other sections of the manual.
24 Q And is she with Lockerbie & Hole, or who is she
25 with?
26 A I believe she's with Thermo Tech, but she's based
27 in Edmonton.
28 Q Okay. I wonder if you could go to tab 3 of that
29 booklet, and this is the affidavit of Mr. J.D.
30 Hole. Do you know who he is?
31 A Yes. I've met him.
32 Q Okay. And in tab 3, paragraph 8, he indicates
33 that --
34 MR. BOWES: What's the date of that?
35 MR. LUNNY:
36 Q The date of that affidavit, sworn the 13th of
37 January 1998.
38 In paragraph 8, he indicates that Lockerbie
39 Thermo had received requests from time to time
40 for certified engineering specifications and
41 engineering reports. "However, on each occasion,
42 the plaintiffs were advised, and accurately
43 advised, that the redesign and re-engineering had
44 not yet been completed and the certified
45 engineering specifications, drawings and reports
46 were not yet available."
47 Now, again, what Mr. Hole is referring to
48 has got nothing to do with the work that you've
54
1 done in order to comply with the order of this
2 court; is that correct?
3 A Not except -- you know, unless there's stuff that
4 they gave me that reflects work that was ongoing.
5 Q Okay. And paragraph 17, if I can ask you to go
6 to page 3, Mr. Hole indicates that he's been
7 advised by Mr. Branconnier that "as soon as the
8 redesign and re-engineered drawings,
9 specifications and reports can be completed, and
10 as soon as the plaintiff can demonstrate its
11 project in Poland to be economically feasible,
12 and as soon as the plaintiffs satisfy the
13 defendants they will proceed in strict compliance
14 with all applicable laws, rules and regulations
15 of the State of Poland, all of the required
16 engineering specifications, drawings and reports
17 will be immediately delivered to the plaintiffs
18 by Thermo Tech Waste Systems Inc. or Thermo Tech
19 Technologies Inc."
20 And I take it given that this was sworn
21 January 13th, 1998, that's not in any way related
22 to your work, which was not even commissioned
23 until, I think, around February 1998; is that
24 correct?
25 A Yeah. I mean, we didn't do any engineering. We
26 were basically just updating the manual. So if
27 there was engineering going on, it could well be
28 reflected in what the changes were in the manual.
29 I don't know.
30 Q Now, in paragraph 22, Mr. Hole indicates that,
31 "Mr. Lis was well aware that any technical
32 information based on the existing plants would be
33 of little or no use, since it was known to all
34 concerned that the proposed Polish plants would
35 be of the new state of the art design."
36 Do you have any knowledge of that?
37 A The first I've heard of it.
38 Q Okay. Now, correct me if I'm wrong, but the
39 drawings in the design criteria manual are
40 stamped "Not For Construction Purposes"; is that
41 correct?
42 A That's right.
43 Q So for construction purposes, one would require
44 other drawings?
45 A It would require additional engineering.
46 Basically, the manual provides the process
47 design. In addition to that, you'd require
48 mechanical, engineering and equipment selection,
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