Transcript May 21 Pages 11 to 20
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1 discussions with counsel, but have you, for
2 example, read the affidavit materials that have
3 been filed by others?
4 A I have read --. Or let me ask, you mean from our
5 side or from all sides?
6 Q Well, maybe you just tell me which ones you've
7 read.
8 A I have seen the affidavit of Mr. Lewis and, of
9 course, my own. That's about --. That's it.
10 Q Have you seen the affidavits that were filed by
11 Mr. Branconnier?
12 A No, I have not.
13 Q Have you seen the affidavits that were filed by
14 Mr. Hole?
15 A No, I have not.
16 Q Have you seen the affidavits that were filed by
17 Mr. Lis? L-i-s.
18 A I have seen parts of those, yes. I'm not sure
19 I've seen the entire thing.
20 Q Okay. Now, I wonder, do you have a file with you
21 say containing your own affidavits?
22 A Not here, no.
23 Q Okay. Where might that be; do you know?
24 A I have some in a briefcase here, --
25 Q Well, maybe --
26 A -- and if you have the document, I'd be --
27 Q Maybe you could get your briefcase and -- it
28 might be quicker this way.
29
30 (WITNESS BRIEFLY LEAVES STAND)
31
32 MR. LUNNY:
33 Q Okay. I'm just looking at say paragraphs -- look
34 at paragraph 3 of your first affidavit, if you
35 would.
36 MR. LUNNY: And that's the affidavit that is found at
37 tab 7 of the chambers brief, my lord.
38 Q Do you have that?
39 A I'm sorry, I brought -- I brought two copies of
40 the -- of the most recent one. Can I --
41 Q Sure.
42 A Thank you. And where am I looking?
43 Q Just look at, first of all, paragraph 3.
44 A 3?
45 Q That indicates you became aware that Mr. Justice
46 Cohen had granted a summary judgment. Do you see
47 that?
48 A Um-hum. Yes.
12
1 Q And then paragraph 5, that you became aware on
2 January 29th, and then you indicate in paragraph
3 6 what happened on January 29.
4 Were those matters that were referred to you
5 by Mr. Branconnier or -- or counsel for Thermo
6 Tech? I only ask you because I don't believe you
7 were in any of the court proceedings.
8 A No, I was not. And yes, in general terms, this
9 is how I learned of these things.
10 Q Okay. And paragraph 7, was it you who instructed
11 counsel, or was it Mr. Branconnier?
12 A I think "we" is a reference to the company. No,
13 it was not me.
14 Q Now, in paragraph 10, it indicates that "The day
15 after the form of the order was settled by
16 Mr. Justice Cohen, namely February 18th, our
17 solicitors were instructed to file an appeal."
18 Do you see that?
19 A Yes, I do.
20 Q There was no instructions to file an appeal
21 before then?
22 A I am not aware of one.
23 Q Okay.
24 A I can't say.
25 Q And then paragraph 27, you indicate that -- I'm
26 sorry, paragraph 12. I'm sorry. February 27,
27 you indicate that the motion for stay was
28 dismissed. Do you see that?
29 A Yes.
30 Q You weren't in the Court of Appeal that day, were
31 you?
32 A No, I was not.
33 Q Okay. Paragraph 13, you say that you take issue
34 with the statement made in paragraph 4, where he
35 alleges that Mr. Justice MacFarlane found the
36 Thermo Tech defendants to be in contempt of
37 "court of the order." It should be "order of the
38 court," obviously.
39 Why is it --. Why is it you take issue?
40 You weren't there, were you?
41 A No, I was not.
42 Q Okay. Well, what information led you to take
43 issue with that statement?
44 A I believe it would be the general knowledge of
45 the proceedings, that I had been following
46 through my contacts within the company.
47 Q Have you since read the reasons for judgment of
48 the Court of Appeal?
13
1 A Yes, I have.
2 Q Okay. And do you dispute that Mr. Justice
3 MacFarlane found the defendants in contempt?
4 A In the --. In the sense that this statement is
5 made, yes, I still believe that.
6 Q Okay. Now, in paragraph 14 through paragraph 18,
7 I believe that you're setting out the concerns of
8 the defendants that delivery of these materials,
9 which you describe as highly confidential and
10 sensitive technical documentation, should be kept
11 confidential. Is that correct?
12 A That's correct, yes.
13 Q Okay. But isn't it the position now,
14 Dr. Cumming, that you had already delivered
15 everything in 1992?
16 A We are firmly of the belief that we had delivered
17 everything in 1992.
18 Q To the plaintiffs?
19 A Yes. There apparently was a disagreement that we
20 had delivered this.
21 Q Well, I think there was a disagreement as to that
22 was -- what else you might have had to deliver.
23 But if you had already delivered everything in
24 1992, you couldn't have been concerned about the
25 confidentiality, could you?
26 A Of course. Confidentiality is a very important
27 issue with our company.
28 Q But the plaintiffs already had it, according to
29 you, in 1992, did they not?
30 A They had materials in 1992 that we insist are the
31 materials that they had coming to them, yes.
32 Q In other words, despite all this stated concern
33 as to confidentiality, once that confidentiality
34 issue had finally been got around to by Thermo
35 Tech, you never delivered anything else, did you?
36 A We were being asked to deliver something else.
37 Q Right. But you didn't. You said, "You got it
38 all in 1992," correct?
39 A And this proceeding is about whether that's true
40 or not.
41 Q But that's what -- the position you took?
42 A Yes.
43 Q All right. And on March 10th, you instructed --.
44 And it's on March 10th, 1998, -- paragraph 23 --
45 that's when you instructed your engineers to
46 deliver all standard certified engineering
47 specifications and drawings to your counsel; is
48 that right? That's what it says?
14
1 A Yes. After having completed some other
2 proceedings prior to that, yes.
3 Q All right. Which engineers?
4 A The engineers that we asked to do this, it was
5 Stothert Engineering.
6 Q Did you instructed Stanley Engineering to deliver
7 all standard certified engineering specifications
8 and drawings?
9 A No, sir. Because Stanley had not been party to
10 this.
11 Q Did you instruct Dick Engineering to deliver all
12 standard certified engineering specifications and
13 drawings?
14 A No, sir. For the same reason.
15 Q Did you instruct Lockerbie & Hole, the other
16 defendants, to deliver all standard certified
17 engineering specifications and drawings?
18 A We did not.
19 Q Did you instruct anybody other than Stothert
20 Engineering to deliver these drawings, these
21 standard certified engineering specifications and
22 drawings?
23 A To my knowledge, no, sir, we did not.
24 Q Okay. Stothert Engineering had been out of the
25 picture for some considerable time prior to March
26 1998, correct?
27 A They had not been working with us regularly, no.
28 Q No. In fact, they hadn't been working with you
29 regularly as your primary engineers since 1993;
30 isn't that correct?
31 A I can't say on that precise date. I was not with
32 the company at that time.
33 Q Okay. They were brought back in only to deal
34 with these proceedings, correct?
35 A They were brought back in because they actually
36 had produced these manuals in the first place.
37 Q They were brought back in after the order of
38 January 20th was made; is that right?
39 A I don't know the answer to that question.
40 Q Well, when was it you instructed Stothert to
41 deliver all standard certified engineering
42 specifications and drawings? Was it March 10th,
43 1998?
44 A With respect to this specific statement and those
45 materials, yes, I believe that's correct. That's
46 my statement, and that's correct.
47 Q Now, paragraph 25 and 26, you indicate that
48 there's no relationship with International
15
1 Eco-Waste Systems S.A. Thermo Tech was certainly
2 very aware of the relationship between
3 International Eco-Waste Systems S.A. and the
4 plaintiff for years before this, correct? And
5 the other plaintiff, I should say Trooper.
6 A Yes. I am not in a position to answer how far
7 back the company was aware of these things.
8 Q Well, if the company was aware of these things --
9 if the company was aware that Trooper's
10 activities in Poland were being handled by
11 International Eco-Waste Systems S.A., and had
12 been aware of this for years, how could they have
13 any serious concerns about International
14 Eco-Waste Systems S.A.?
15 A Well, first of all, I have not agreed that they
16 were aware for years. I don't --
17 Q No. I'm --
18 A I don't know that.
19 Q -- saying if. If.
20 A If? That's a hypothetical question.
21 Q Well, you've indicated that the company has
22 serious concerns.
23 A Yes, we do.
24 Q You don't know whether they've known about it for
25 years.
26 A I am saying I do not know personally.
27 Q Ah. Okay. So you might have serious concerns?
28 A I do.
29 Q Okay. What's the company called Mirotherm? Can
30 you tell the court what that is?
31 A Mirotherm?
32 Q Miratherm.
33 A Miratherm is a company that deals with the end
34 products from the -- from the process. From the
35 Thermo Master TM process.
36 Q It's a Thermo Tech company?
37 A Yes.
38 Q Okay. Did you know that Miratherm had proffered
39 a contract to International Eco-Waste Systems
40 S.A. in June 1997?
41 MR. BOWES: My lord, I just rise at this point to note
42 that my friend is certainly wide afield from the
43 affidavits of Mr. Cumming. I don't mind my
44 friend going wide afield. I just make the point
45 that if he's to do -- to do that, I wish the same
46 opportunity when cross-examining his people.
47 MR. LUNNY: Well, I don't accept that I'm going wide
48 afield, my lord. He's dealing with a lack of
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1 relationship with International Eco-Waste Systems
2 in his affidavit, and I'm simply suggesting to
3 him that Thermo Tech, through its subsidiary,
4 actually proffered a contractual agreement to
5 that company in July 1997.
6 MR. BOWES: Well, my lord, the paragraph to which my
7 friend refers is that the company has serious
8 concerns regarding the enforceability of any
9 confidentiality agreement or undertaking with
10 International Eco-Waste Systems S.A., as that
11 company operates in Poland, and there appears to
12 be no effective manner in which they could be
13 controlled by the courts of this province.
14 MR. LUNNY: Read the paragraph before.
15 MR. BOWES: Paragraph 25, that our company has serious
16 concerns regarding the delivery of any
17 confidential information and documentation to the
18 Polish company, International Eco-Waste Systems
19 S.A., inasmuch as that company has no contractual
20 relationship with us whatsoever. Contractual
21 relationship.
22 MR. LUNNY: Well, let me proceed, --
23 MR. BOWES: We have --
24 MR. LUNNY: -- then.
25 MR. BOWES: -- a licence agreement --
26 MR. LUNNY: I won't --
27 MR. BOWES: -- with Trooper, not with Eco-Waste.
28 MR. LUNNY:
29 Q Now, in paragraph 29, if I can take you to
30 paragraph 29, you say that "Until February 17th,
31 1998, when Mr. Justice Cohen settled the terms of
32 his order, and until we then presented the terms
33 of this order to our engineers, I had no firm
34 understanding of precisely what Mr. Justice Cohen
35 had ordered the defendants to deliver."
36 Do you see that?
37 A Yes, I do.
38 Q You had the reasons for judgment of The
39 Honourable Mr. Justice Cohen a lot earlier than
40 that; isn't that correct?
41 A I'm sorry, what was the question?
42 Q You had the reasons for judgment of The
43 Honourable Mr. Justice Cohen long before February
44 17th, 1998, correct?
45 A Yes. Yes, that's correct.
46 Q Did you give that to your engineers at that time?
47 A I am not personally aware whether that was so or
48 not.
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1 Q Did you have any problems understanding what
2 Mr. Justice Cohen had said in the reasons for
3 judgment had to be delivered?
4 MR. BOWES: Well, my lord, to ask this witness to
5 interpret your reasons for judgment, I think is
6 unfair and goes beyond the scope of any
7 cross-examination that should be permitted here.
8 MR. LUNNY: Well, he testifies to his understanding,
9 my lord, and I'm entitled to cross-examine him as
10 to his understanding.
11 Q I mean, I don't want to make a big point of it,
12 but did you have any difficulty understanding the
13 reasons for judgment?
14 A I --. My reference here is understanding the --
15 what was ordered with respect to materials to be
16 delivered, yes.
17 Q Okay. Now, you indicate in paragraph 30 the
18 words "standard certified engineering
19 specifications" is a direct quote from paragraph
20 3.02 of the Eastern European Licensing Agreement,
21 but -- and you refer to the reasons for judgment
22 there, do you not, not the formal order?
23 A Yes.
24 Q Okay. So if you could get that from the reasons
25 for judgment, you didn't need to settle the
26 order, did you?
27 A I'm not following you.
28 Q All right.
29 A I'm not understanding your question.
30 Q All right. There's nothing in the order, is
31 there, Mr. Cumming, relating to paragraph 3.02 of
32 the Eastern European Licence Agreement, is there,
33 in the form of order which you've provided to
34 your engineers?
35 Would you like to see the formal order?
36 A Yes. Because I can't sit here and do that from
37 memory.
38 MR. LUNNY: That is to be found, my lord, just while
39 my junior is looking for a copy, as Exhibit A to
40 Mr. Lis's affidavit. Tab 4, Exhibit A.
41 THE COURT: I'm sorry, Exhibit?
42 MR. LUNNY: Exhibit A --. Oh, I'm sorry, I think
43 it's --. Yes, I'm sorry, it's Exhibit B, tab 4.
44 Exhibit A is the reasons for judgment.
45 Q Do you see paragraph 2 there?
46 A Yes. On page 2?
47 Q Okay.
48 A Yes.
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1 Q There's no --. It's very broad, isn't it?
2 A It seems --. It seems to be quite specific in
3 its language to me.
4 Q Okay. Pretty straightforward, isn't it?
5 A Yes, it is.
6 Q All right. Not -- no reference to 3.02 of any
7 agreement, is there?
8 MR. BOWES: Well, my lord, I don't know where my
9 friend is reading from, but my paragraph 2 on
10 page 2 of your reasons of judgment specifically
11 refers to clause 3.02 and quotes from --
12 MR. LUNNY: No, no, no. I'm -- I'm directing my
13 learned -- my friend to the formal order. This
14 is what we're here about.
15 Q You have the order in front of you, sir?
16 A Yes, I do.
17 Q Okay. It doesn't talk about section 3.02 of any
18 agreement there, does it?
19 A It does not, though these are the words.
20 Q All right. It doesn't talk about the definition
21 of "process" in that agreement, does it? This
22 order doesn't mention that, does it?
23 MR. BOWES: Well, my lord, the order speaks for
24 itself. This kind of cross-examination is unfair
25 and unwarranted.
26 MR. LUNNY: Pretty straightforward, my lord, but
27 I'm --
28 MR. BOWES: Well, --
29 MR. LUNNY: -- prepared to carry on. I don't --
30 MR. BOWES: It's an order of this court. I mean, --
31 MR. LUNNY: Okay.
32 Q You read the reasons for judgment, did you? I
33 think you said you did.
34 A Yes. I believe I did, yes.
35 Q Okay.
36 A Am I done with this?
37 Q Yes. That can go back.
38 I wonder if my learned junior can put the
39 reasons for judgment of January 20th, 1998 in
40 front of you.
41 If you can go to page 9, in paragraph 20.
42 On the bottom left-hand side; do you see that?
43 A Yes.
44 Q Where there's a submission that says -- the
45 second sentence -- "A submission that I would
46 like to make is the design drawings that your
47 lordship has ordered to be delivered, my concern
48 is that if those drawings are delivered, once
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1 they are delivered, the horse is out of the
2 barn."
3 Do you see that?
4 A I do.
5 Q Okay. What drawings were those?
6 MR. BOWES: Well, how can this witness --
7 MR. LUNNY: Well, if he doesn't know, then he doesn't
8 know.
9 Q Do you know what drawings those were?
10 A Since they're Mr. Bowes' statements, I can't say
11 what drawings he was referring to, no.
12 Q Well, they're not the drawings that were provided
13 in 1992, because the horse would hardly be out of
14 the barn if it had already been delivered,
15 correct?
16 A I --. As I said, I don't know what drawings he
17 was referring to.
18 Q Okay. And they're not the drawings that you
19 subsequently got Stothert Engineering to deliver,
20 because you hadn't retained Stothert Engineering
21 to do that at that point; isn't that correct?
22 MR. BOWES: Well, my lord, I object to this line of
23 questioning. Dr. Cumming has already said that
24 he doesn't know what is being referred to there,
25 and then my friend is going on trying to make all
26 kinds of other inferences.
27 THE COURT: Mr. Bowes, with great respect, this is
28 cross-examination on the affidavit.
29 MR. BOWES: Yes.
30 THE COURT: And I certainly can't stop you from
31 objecting when there are proper objections to be
32 made, --
33 MR. BOWES: Yes.
34 THE COURT: -- but I think you should respect the role
35 of cross-examination and allow your friend to
36 proceed. Now, as I say, if you want to put your
37 observations on the record, please feel free to
38 do so.
39 MR. BOWES: If it were an ob -- if it were a
40 cross-examination on something he said in his
41 affidavit, I would be less vociferous in my
42 objection. But Mr. Lunny is attempting to
43 cross-examine him on the transcript from the
44 court proceeding, not on his affidavit.
45 THE COURT: You may proceed, Mr. Lunny.
46 MR. LUNNY: Thank you.
47 Q Do you accept that, that it can't be a reference
48 to the drawings which were subsequently asked to
20
1 be provided by Stothert Engineering?
2 A The drawings that were later delivered in March,
3 you mean?
4 Q Right.
5 A I can't say whether that would be so, but it
6 certainly could be.
7 Q Okay.
8 A Those were the -- those would be the pertinent
9 drawings, if that's what Mr. Bowes was referring
10 to.
11 Q Okay. Were you involved in the preparation for
12 the Court of Appeal hearing?
13 A The --. I'm trying to refresh my own memory as
14 to --. That was the 19 --
15 Q 27th of February.
16 My question is very simple.
17 A Oh, okay.
18 Q Do you know why it was represented to the Court
19 of Appeal that Mr. Justice Cohen's order had gone
20 too far?
21 A I believe I do know that, yes.
22 Q Why is that?
23 A The matter of interpretation of precisely what
24 was to be delivered.
25 Q Okay. And what do you say, therefore, under Mr.
26 Justice Cohen's order was to be delivered that is
27 too far? That is going too far?
28 A It is a matter that we're obviously discussing
29 here, the content of the technical materials that
30 are to be delivered.
31 Q Okay.
32 A And we have stated repeatedly and on paper as to
33 what we believe that to be.
34 Q Well, you believe -- you're telling this court
35 that the order didn't go too far because the
36 order only meant that you were to confirm that
37 you had delivered that which you'd already
38 delivered, correct?
39 A Yes.
40 Q So it wouldn't have been going too far, would it,
41 if that was the proper interpretation?
42 A The proceedings were continuing.
43 Q All right. Now, why is it you have to go to an
44 engineer to ask them to deliver the standard
45 certified engineering specifications? Thermo
46 Tech has them in their possession, don't they?
47 A Thermo Tech does virtually all of its engineering
48 through consultants.
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