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1 CANADA
2 PROVINCE OF BRITISH COLUMBIA
3
4
5 IN THE SUPREME COURT OF BRITISH COLUMBIA
6 (In Chambers)
7 (Before The Honourable Mr. Justice Cohen)
8
9
10
11 No. C976669 Vancouver, B.C.
12 Vancouver Registry May 21, 1998
17 BETWEEN:
19 TROOPER TECHNOLOGIES INC. and
20 INTERNATIONAL ECO-WASTE SYSTEMS S.A.
22 PLAINTIFFS
24 AND:
26 THERMO TECH TECHNOLOGIES INC., THERMO
27 TECH WASTE SYSTEMS INC., LOCKERBIE & HOLE LTD.
28 and LOCKERBIE THERMO TECH INC.
29
30 DEFENDANTS
36 PROCEEDINGS IN CHAMBERS
1 APPEARANCES:
2
3 D. LUNNY, Esq. and
4 J.A. DAWSON, Esq. for the Plaintiffs
5
6 E.E. BOWES, Esq. for the Defendants
7
8
9 INDEX
10 Page No.
11
12 Opening by Mr. Lunny 3
13
14 CUMMING, D.B. (for Defendants)
15 cross-exam by Mr. Lunny 9
16
17 LEWIS, D.R. (for Defendants)
18 cross-exam by Mr. Lunny 39
19 re-exam by Mr. Bowes 60
20
21 LIS, S. (for Plaintiffs)
22 cross-exam by Mr. Bowes 67
23 re-exam by Mr. Lunny 84
24
25 KELLY, H.G. (for Plaintiffs)
26 cross-exam by Mr. Bowes 86
27 re-exam by Mr. Lunny 100
28
29
30 EXHIBITS
31
32 No. Description Page No.
33
34 1 Certification Letter from File of
35 Mr. Lewis 48
36 2 Booklet of Documents of Plaintiffs 60
37 A (For Identification) Buff Binder of
38 Documents 66
39 B (For Identification) Affidavit of
40 Mr. Liebowitz 67
41 3 February 25, 1997 News Release 73
42 4 April 14, 1997 News Release 73
43 5 February 3, 1997 News Release 73
44 6 Internet Web Site Page for Trooper 74
45 7 Internet Web Site Page for Trooper 84
46 8 Memorandum of Instructions to
47 Mr. Kelly of Dayton & Knight 99
48
3
1 THE REGISTRAR: Order in chambers.
2 In the Supreme Court of British Columbia, at
3 Vancouver, in chambers, this 21st day of May
4 1998, in the matter of Trooper Technology v.
5 Thermo Technology, my lord.
6 MR. LUNNY: May it please your lordship, David Lunny,
7 L-u-n-n-y, and with me, Julien Dawson, appearing
8 on behalf -- that's D-a-w-s-o-n -- appearing on
9 behalf of the plaintiff applicants.
10 MR. BOWES: For the record, my lord, Bowes, initial
11 E., for the defendants, and with me, by your
12 leave, my lord, Mr. Liebowitz, general counsel
13 for Thermo Tech.
14 MR. LUNNY: My lord, by way of opening, as your
15 lordship will be aware, this is an application
16 brought pursuant to Rule 56, in the nature of a
17 contempt of court hearing with respect to the
18 defendants for their failure to comply with your
19 lordship's order of January 20th, 1998, which
20 order required that they deliver forthwith to the
21 plaintiff all standard certified engineering
22 specifications, including drawings, regarding
23 thermophilic plants, in their possession or
24 control. And I might hand up a chambers record,
25 my lord, because that contains the affidavit
26 materials in support. I think that may be --.
27 Was that filed yesterday? It may be an update;
28 I'm not sure.
29 If your lordship will check if that has at
30 tab 8 the affidavit of Daniel Cumming, sworn May
31 15th --. No, this is the old one.
32 The affidavit of Mr. Lis which is at tab 4,
33 my lord, sets out the efforts made on behalf of
34 the plaintiff to seek compliance with the orders.
35 He attaches the order, he attaches your
36 lordship's reasons for judgment, and in paragraph
37 3, attests to the diverse demands for compliance
38 prior to the making of the affidavit. He
39 indicates that on February 19th, an appeal was
40 filed, and an application for a stay was set
41 down. He attended the appeal hearing, heard by
42 Mr. Justice MacFarlane, and indicates that Mr.
43 Justice MacFarlane found that the Thermo Tech
44 defendants were in contempt of court with respect
45 to your lordship's order.
46 In paragraph 5, he attests that despite
47 being found in contempt of court, the Thermo Tech
48 defendants still have not delivered anything to
4
1 the plaintiffs and have acted as if the order of
2 Mr. Justice Cohen did not exist, and so on.
3 And in paragraph 6, he attests that he
4 believes that they're deliberately causing Thermo
5 Tech to breach the order and they are fully aware
6 of the anticipated changes in Poland's
7 environmental laws, et cetera, making time of the
8 essence for the plaintiffs.
9 That was, as your lordship will note, filed
10 on the 5th of March 1996, with the hearing of the
11 contempt set for March 13th. I'm sorry, 1998.
12 As your lordship will also perhaps recall,
13 in the interim, there was a purported compliance,
14 and that is -- essentially, was accompanied by
15 the affidavits of D. Ross Lewis and Daniel
16 Cumming. Those are at tabs 6 and 7 of the
17 chambers record. And when the matter came before
18 Mr. Justice McKenzie, very late in the day on a
19 Friday, March 13th, his lordship indicated that
20 the matter should be brought back before the
21 judge who'd made the order and that the affiant
22 should be available for cross-examination, if so
23 directed. And I will come to that aspect in one
24 moment, my lord.
25 Very briefly, by way of opening, I would say
26 that this is a clear case of a flagrant breach of
27 the order of the court, and the order of the
28 court is abundantly clear. There is, of course,
29 no application to stay that order, such an
30 application having been denied in this court and
31 dismissed in the Court of Appeal, nor has there
32 ever been any application to vary, alter or amend
33 that order. Your lordship, therefore, is not
34 sitting either on appeal of your own order or its
35 scope or its ambit, nor is this a review of that
36 earlier decision. And I say that in
37 anticipation, because the bulk, I suggest, of my
38 friend's arguments is somehow to gloss upon or
39 attach or impose some sort of qualifications to
40 the express terms of the order, which given the
41 doctrine of functus officio is not something that
42 is to be done on this hearing.
43 This is a civil contempt proceeding, my
44 lord, and the object of the plaintiffs is
45 compliance, not punishment, however, the tools of
46 the legal system require that the order to be
47 obeyed may have to be accompanied by a
48 punishment. The standard of proof is that of
5
1 beyond a reasonable doubt, and I have no qualms
2 about meeting that standard in this case, given
3 the intentional disobedience and, of course, the
4 express finding of the Court of Appeal that the
5 defendants were in contempt.
6 And that, of course, my lord, brings me to
7 the first point I would emphasize in opening, is
8 that the fact that they have sought to cure the
9 contempt is a mitigating factor vis-a-vis how
10 this court should deal with the contempt. Even
11 if they've cured it completely, it does mean that
12 they were in contempt prior to that point and,
13 therefore, should be sanctioned. And, of course,
14 and I guess perhaps I'm anticipating again, it's
15 simply not open to someone in the defendants'
16 position to ignore the court's order because it
17 wants, at some point, to get around to an issue
18 of confidentiality or wants at some point to get
19 around an issue of, well, what's included, and
20 that -- there are -- there is authority for that,
21 which I'll deal with in my submissions.
22 Now, having said that, and as your lordship
23 may recall briefly, the defendants have filed
24 affidavits of a Mr. Cumming, -- or -- I'm not
25 sure if he prefers to be called Dr. Cumming or
26 Mr. Cumming -- a director of the defendant, and a
27 Mr. Lewis, who's an engineer, purporting to
28 indicate full compliance at this stage with the
29 order. I would seek leave to cross-examine those
30 two gentlemen on their affidavits. And I would
31 indicate that -- I'm not sure if it's necessary,
32 but I have affidavits of service with respect to
33 the order, affidavits of service with respect to
34 the notices of motion, et cetera, although I'm
35 not sure my friend is taking any objection to the
36 technical service.
37 MR. BOWES: Just on that point, my lord, I notice that
38 my friend's motion as filed is not only against
39 the company but against Mr. Branconnier
40 personally. I take it my friend is abandoning
41 the aspect against Mr. Branconnier, as no attempt
42 has been made to serve him. I don't take any
43 issue with the service on the company.
44 MR. LUNNY: My lord, that was a matter because of the
45 late service of Mr. Branconnier, we couldn't
46 proceed on March 13th, and I then indicated that
47 I would be proceeding with the contempt against
48 the company alone. That --. I'm not abandoning
6
1 the application vis-a-vis Mr. Branconnier; it's
2 just that I don't believe I can -- or at least I
3 wasn't in a position to proceed with it at that
4 time. So this is an application against the
5 company.
6 MR. BOWES: Well, my lord, my friend is either going
7 ahead or he's not. He can't issue a notice of
8 motion for contempt and then just leaving it
9 hanging out there. That's certainly not proper
10 at all. My friend can bring another application
11 for a contempt, if he so wishes, at any time he
12 wants, but surely the application against
13 Mr. Branconnier personally is either withdrawn or
14 abandoned or dismissed by your lordship today.
15 MR. LUNNY: My lord, I haven't brought the affidavit
16 of service of Mr. Branconnier here, I do have
17 one, and perhaps we can deal with that over the
18 lunch break, but I'm leaving -- that's out there,
19 depending on the decision on the -- in the case
20 today, whether that will be proceeded with or
21 not. But I was not in a position to proceed with
22 that on the last day. It's very simple.
23 THE COURT: Well, for the purposes of this
24 application, the plaintiff will confine its
25 submissions to the notice of motion pertaining to
26 Thermo Tech Technologies and Thermo Tech Waste
27 Systems Inc.
28 MR. LUNNY: Thank you, my lord.
29 My lord, in that -- on that basis, I would
30 like to have leave to cross-examine Mr. Cumming,
31 and I'd like to have other witnesses excluded
32 other than the representatives of the parties.
33 MR. BOWES: Well, my lord, there are two matters that
34 I want to deal with first.
35 There are two additional affidavits that my
36 friend has not referred to. Well, I suppose he
37 has the second affidavit of Dr. Cumming in the
38 brief before you. There is also an affidavit of
39 Mr. Liebowitz that has been filed that my friend
40 had not included in that book, although copies
41 have been provided to him, and I declare that we
42 will be relying upon that affidavit as well in
43 this proceeding.
44 And the second aspect was one as to format.
45 I had supposed that my friend would, by way of
46 his affidavit evidence, put that evidence before
47 you from his deponents. I would then have an
48 opportunity to cross-examine them, and then I
7
1 would be putting my case forward by using my
2 affidavits, and my friend would have an
3 opportunity, by your leave, to cross-examine
4 them. If that --. I'm open to your lordship's
5 direction on this, of course. If you want my
6 deponents cross-examined before their evidence is
7 put before you, fine. I would have thought it
8 would have been preferable the other way, but I'm
9 in your hands, my lord.
10 MR. LUNNY: My lord, normally, if -- had there been an
11 order that cross-examination on the affidavit
12 take place before the hearing, and transcripts
13 made available to the court, then I would not be
14 splitting my case up to put my affidavit evidence
15 in and then read in -- and then await until the
16 other side had done their case to then introduce
17 cross-examination on the affidavits. I would
18 suggest it's quicker to put my case in through
19 my -- my affidavits are here, and cross-examine
20 on the affidavits of the defendants.
21 THE COURT: Very well.
22 MR. LUNNY: Might there be an order excluding Mr. --
23 oh -- Mr. Lewis. And I did indicate to my friend
24 that I'm objecting to the admission of
25 Mr. Liebowitz's affidavit. Mr. Liebowitz was in
26 court on Tuesday, as your lordship will
27 recall, -- I'm sorry -- yes, Tuesday. There was
28 never any indication that he would be a witness
29 in this case. And on Tuesday afternoon, we
30 received a 42-paragraph affidavit, 7 pages long,
31 with exhibits, completely collateral to any of
32 the issues on this contempt hearing, which in my
33 submission, and I wrote to my friend, saying it's
34 another attempt to derail this proceeding. He
35 wrote to me saying, "Well, I'd like it to be
36 included, and if you need an adjournment, then
37 I'll consider that." Well, I don't need an
38 adjournment. I need to get this heard. But that
39 affidavit ought not to be included at this late
40 stage. I have taken no objection to the late
41 filing of the affidavit, the second affidavit of
42 Mr. Cumming, even though it's far out with the
43 time permitted by Rule 65, but I do put my foot
44 down at this obvious attempt to derail this
45 proceeding, in my submission. But perhaps that
46 can be dealt with when my friend seeks to rely
47 upon it.
48 MR. BOWES: Well, my lord, just if I might respond to
8
1 that. This affidavit was not filed late; it was
2 filed on Tuesday. We are now at Thursday. And
3 the reason for the late filing of that affidavit
4 is the fact that Mr. Liebowitz was in Poland,
5 doing his investigations, until he came here for
6 this hearing. It's not a matter that this
7 evidence was sitting around and available to us
8 earlier. Now, you know, under Rule 65, we could
9 file materials up to and including this morning,
10 so I don't believe that we're late at all, and
11 the fact is this affidavit is pertinent and
12 relevant and very important to be heard and very
13 important evidence to be before your lordship on
14 the issue of contempt.
15 THE COURT: Mr. Lunny.
16 MR. LUNNY: Thank you. Might Mr. --
17 MR. BOWES: Oh, yes. We should talk about excluding
18 the witnesses. The --. I would like to have Mr.
19 Lewis -- oh, sorry, you wanted to
20 cross-examine --
21 MR. LUNNY: I'm going to do Mr. -- Dr. Cumming first.
22 MR. BOWES: Dr. Cumming first?
23 Mr. Lewis, being the expert engineer, it is
24 my submission that he should be allowed to stay
25 through the cross-examination of Dr. Cumming, but
26 I agree that all of the other witnesses to be
27 called, although I'm not quite sure how to put
28 this, because I'm not sure who else will be
29 called, that's in your lordship's hands, but I
30 would certainly support or agree that -- well,
31 there really -- there really is no other witness
32 to be properly excluded. The experts of --
33 Mr. Kelly, of the -- for the plaintiff, I would
34 imagine my friend would want him present during
35 the examination of Mr. -- our expert, Mr. Lewis.
36 Mr. Lis, representing one of the parties,
37 although he will be cross-examined, I will apply
38 for cross-examination of him, I don't suspect
39 that he should be excluded. Likewise,
40 Mr. Liebowitz here, representing Thermo Tech. He
41 might be cross-examined on his affidavit, but
42 again, he's representing the parties. So in my
43 submission, there's really no need to exclude
44 anyone from a cross-examination on an affidavit.
45 That affidavit has already been out there. All
46 of the affidavits have.
47 THE COURT: Mr. Lunny?
48 MR. LUNNY: The nature of the cross-examination, my
9
1 lord, will be such that I will be delving into
2 matters where I will suggest will show that the
3 evidence of Mr. Cumming is not consistent with
4 the evidence given by Mr. Lewis already in his
5 affidavit and, therefore, is a very strong basis
6 for suggesting that exclusion is appropriate in
7 those circumstances.
8 THE COURT: Very well. There will be an exclusion of
9 those parties who are to be cross-examined on
10 their affidavits.
11 MR. LUNNY: My lord, I concede with my friend that a
12 representative of each party ought to be excluded
13 from the exclusion, so Mr. Lis and Mr. Liebowitz
14 can remain.
15 THE COURT: Very well.
16 MR. LUNNY: So that would mean that Mr. Lewis and
17 Mr. Kelly will have to excuse themselves.
18
19 (MR LEWIS AND MR. KELLY LEAVE THE COURTROOM)
20
21 MR. LUNNY: And I'd like to, if I might, have Mr. --
22 Mr. Cumming come to the witness box.
23
24 DANIEL BRIAN CUMMING, a witness
25 on behalf of the Defendants,
26 having been duly sworn, testifies
27 as follows:
28
29 THE REGISTRAR: Please state your full name and spell
30 your last name for the record, sir.
31 A Daniel Brian Cumming, C-u-m-m-i-n-g.
32 THE REGISTRAR: Thank you, sir. You may sit if you
33 like.
34
35 CROSS-EXAMINATION BY MR. LUNNY:
36
37 Q Do you prefer to be called Dr. Cumming or
38 Mr. Cumming?
39 A Mr. Cumming is fine.
40 Q Now, Mr. Cumming, you became a director of Thermo
41 Tech --. And I'll call the defendants, if I
42 might, collectively, Thermo Tech. You understand
43 I'm referring to the defendants?
44 A I understand.
45 Q Okay. And you became a director of Thermo Tech
46 group, if I can call it that, or one of them,
47 in -- sometime in late 1996?
48 A That's correct.
10
1 Q All right. So you weren't, at least in -- as an
2 officer or director of the company, formally in
3 such a position, prior to late 1996?
4 A I was not a director until that time, that's
5 correct.
6 Q All right. You weren't an officer, either?
7 A No. I guess not.
8 Q Okay. You had a relationship with those
9 companies, however, going back to 1988; is that
10 correct?
11 A That's correct.
12 Q And that's because at that time you were running
13 the Agriculture Canada research station at
14 Summerland, B.C.; is that correct?
15 A That is correct, yes.
16 Q Okay. And you were the head of the department of
17 food processing; is that right?
18 A During the period of time, I was the assistant
19 director and/or the acting director. Most of the
20 '88, '89 period, I was the acting director of
21 that research station.
22 Q Okay. In any event, you were an employee of
23 Agriculture Canada; is that correct?
24 A For the record, Agriculture and Agri-Food Canada,
25 yes.
26 Q Thank you. And Agriculture and Agriculture Food
27 Canada, with some granting from companies and
28 educational institutions, was involved in a
29 research project; is that correct?
30 A Over a period of time, several, actually.
31 Q All right. And one of them was for Thermo Tech,
32 related to research into the application of the
33 thermophilic process to effluent from
34 potato-processing plants; is that correct?
35 A Yes.
36 Q Okay. And over what period was that?
37 A That particular work, I believe, commenced --.
38 There was one particular research project on
39 potato waste. That research commenced around
40 1990, I believe.
41 Q Okay. Now, prior to swearing the two affidavits
42 that you've provided to the court, what have you
43 read or perused in order to apprise yourself and
44 inform yourself of what's occurred in these
45 proceedings?
46 A I have seen various records of the proceedings,
47 and I have had discussions with counsel.
48 Q Okay. Well, you don't have to tell me about the |
