Court Ruling. Part Two of Three
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[17] Plaintiffs counsel argued that one of the key admissions of the noncompliance with the Order is contained in the following evidence from Mr. Cumming's cross-examination:
Q All right. Regarding thermophilic plants?
A Regarding the Thermo Master TM Mark II plant,
yes, sir, we do.
Q Is that a thermophilic plant?
A It is a Thermo Master TM Mark II plant.
Q Is the Thermo Master TM Mark II plant a
thermophilic plant?
A It is a comprehensive package of technologies
that we market under that term, in which we
conduct a form of thermophilic processing.
Q Which means it's a thermophilic plant, isn't it?
A If that's what you wish to describe it as, you
may do so. We describe it very specifically for
very specific reasons, which I also have filed an
affidavit to explain.
Q And we'll get to your other affidavit in a
moment.
A Fine. I'm sure.
Q Okay. So if I may call a thermophilic plant,
you'll understand what I'm referring to?
A I will understand what you're referring to.
Q Okay. So you've got the Dick Engineering
drawings. You have drawings from Stanley
Engineering, do you not?
A We do.
Q You have drawings from other engineers, also, do
you not?
A Yes. Yes.
Q What other engineers?
A Stothert.
Q What other engineers?
A I am not prepared to specifically name them,
though I am of the belief that there would be at
least two or three other firms that I cannot
state, from my own knowledge, that we have other
drawings.
[18] With regard to Mr. Cumming's May 15th affidavit, he testified that the defendants did not have to produce any of their new drawings and specifications because they related to a new process with respect to which the plaintiffs had no right, title or interest. His evidence is that the process was completely changed:
Q All right. How is it, sir, that this seemingly
complete defense emerges in your affidavit of
May 1998?
A How is it that a that date it comes forward?
Q Yes.
A I think, rather simply, the other aspects of
this affidavit, which I'm sure you'll be wishing
to discuss, that lay out the fact that we have been
able to document, through attainment of patent,
that regardless of what we may have said at any
pint in time, that as a result of the patenting, it
is now confirmed that his is an entirely different
process from that which existed before.
...
Q Okay. And it's a totally distinct process from
the earlier process; is that right? Paragraph 8.
A. Yes. Yes. that's correct.
...
Q No, but your evidence is it's completely changed; it's ---
A Yes.
[19] However, Mr. Cumming could not provide an explanation for what Mr. Branconnier Meant in his affidavit where he deposed that the process had remained essentially unchanged. Mr. Cumming testified, as follows:
Q Now, in 5, at the foot of the page, --.
Oh, let me just ask you. You're aware that
Thermo Master TM, the term Thermo Master TM, is a
trademark which is licensed to Trooper
Technologies Inc. under the European licensing
agreement? You're aware of that, aren't you?
A That --. The trade marking of that term, yes.
I'm aware of that.
Q Okay. So we have no problem, do we, with the
fact that Trooper may call its plants Thermo
Master TM plants or its process Thermo Master TM
process, correct? It's licensed to do so.
A It's licensed to use those terms.
Q Right. Okay. So --
A Not --
Q So look at 5 of Mr. Branconnier's
affidavit. He says, "The Thermo Master TM
process has remained essentially unchanged since
the first decision was taken to proceed on a
commercial scale with the development of Thermo
Master TM plants, and the process which was
contracted to be provided to the plaintiffs
pursuant to the Eastern European Licensing
Agreement has been fully and completely
satisfied."
Q Do you see that?
A I see it. Yes
THE COURT: Which paragraph, Mr. Lunny?
MR. LUNNY: 5, at the foot of page -- the
first page of tab 5, my lord.
THE COURT: Oh, tab 5? I'm sorry. Thank you.
MR. LUNNY:
Q So you say it's a new process, distinct from the
original process, and Mr. Branconnier says it's
essentially unchanged. Which is it?
MR. BOWES: Well, my lord, --
A The --
MR. BOWES: -- I must object to that question, because
my friend is putting a paragraph of
Mr. Branconnier's affidavit to him in the context
of his own cross-examination and is --
MR. LUNNY: What's wrong with that?
MR. BOWES: -- and is misleading this witness as to
the reference to the word "process" in
Mr. Branconnier's affidavit, which is a specific
reference to a specific process, and attempting
to confuse this witness by that question as a
result of his last evidence on the last
cross-examination regarding a different process.
I think that's unfair, and I object.
THE COURT: Proceed, Mr. Lunny.
MR. LUNNY: Thank you.
Q Let's go to, if I might, 12. Please
read that.
A I'm sorry, where are you?
Q Page 2 of --
A Of?
Q Of Mr. Branconnier's affidavit, 12. He
says that, in further response to 6(a),
"Although, there have been some significant
engineering upgrades to the standard Thermo
Master TM plant, the heart of the system, namely
the aerobic thermophilic microbial fermentation
or Thermo Master TM process is totally reliable
and has remained essentially unchanged since the
decision was taken to proceed to commercial scale
with this process."
Q Well, is it unchanged or is it totally
distinct?
A I can't answer for precisely what Mr. Branconnier
meant in this statement. I can tell you what our
new patented -- what we call Thermo Master TM
Mark II process actually consists of and how
that's different.
[20] Mr. Cumming testified further that Corinth, Brampton and Hamilton plants were not constructed pursuant to the Manual, which contradicts the sworn evidence of Mr. Branconnier that these plants were constructed pursuant to the design criteria manual. Mr. Cumming testified, as follows:
Q Okay. Let me just repeat my question: Is it
your evidence that the Corinth, Brampton and
Hamilton plants were not constructed pursuant to
this design criteria manual?
A That would be correct, yes.
Q Okay. Maybe you can look at 22 of
Mr. Branconnier's affidavit, the bottom of the
page, because he says, "The Corinth, Brampton and
Hamilton plants were all constructed pursuant to
the design criteria manual prepared by Stothert
Engineering."
Q Do you see that, sir?
A I do.
Q Which one is it? Is it your version or his?
Which one's the case?
A Well, as I've previously said, first, I have not
seen this, and secondly, I do not know precisely
what Mr. Branconnier was referring to. This is a
complex issue, and I will simply make my own
statement.
[21] Turning next to the evidence of Mr. Ross Lewis, in his affidavit sworn March 11th, he deposed, inter alia, as follows:
3. That on March 10, 1998 I delivered to the
offices of O'Neill & Company, a package of documents
containing the standard certified engineering
specifications, including drawings, regarding
thermophilic plants that have been prepared for
Thermo Tech Technologies Inc. and Thermo Tech Waste
Systems Inc.
4. That to my knowledge there were no other
certified engineering specifications or
drawings regarding thermophilic plants in the
possession or control of Thermo Tech Technologies
Inc. and Thermo Tech Waste Systems Inc. that are
referred to in the Order of Mr. Justice Cohen.
5. That I have reviewed an entered copy of the
Order Of Mr. Justice Cohen, granted January 20, 1998
in this proceeding and I verily believe the
documentation which I have delivered to O'Neill &
Company for delivery to the solicitors for the
Plaintiffs herein, fully complies with the Order of
Mr. Justice Cohen in every aspect.
6. That I personally directed the updating and
revision of the standard certified engineering
specifications so delivered so as to make them
accurate and current to the date of delivery and
declare they include all such Specifications for
Improvements (as defined in paragraph 7.03 of the
Eastern European License Agreement).
7. That I hereby certify that the standard
certified engineering specifications flaw delivered
fully satisfy what is reasonably necessary to enable
a Licensee to utilize the Thermophilic Aerobic
Digestion Process (defined as "Process" in the
Eastern European License Agreement of October 19,
1992) and to construct Plants (as defined in the said
Eastern European License Agreement).
That attached hereto and marked Exhibit "A" to
this my Affidavit is a true copy of the letter of
certification which I have now delivered to accompany
the delivery of the standard certified engineering
Specifications and drawings referred to therein.
[22] At a hearing before this court on April 8th, defence counsel submitted, as follows:
... Mr, Lewis, who is a professional engineer, has
been in this field of process technology for 25
years, and has provided consulting and engineering
services to Thermo Tech Technologies and Thermo Tech
Waste Systems over the past nine years. He's been
there, he knows what has developed. He delivered to
me on March 10th, late, the package of documents
containing the standard certified engineering
specifications, including drawings, regarding
thermophilic plants that had been prepared for Thermo
Tech Technologies Inc. and Waste Systems companies.
Paragraph 4 To his knowledge - and this is a
[fax cut off but I suspect it says something like "man who has spent"]
years doing all this stuff - to his knowledge, there
are no other standard certified engineering
specifications or drawings regarding thermophilic
plants in the possession or control of either of
these companies as referred to in your order.
[23] However, Contrary to Counsel's submission, in cross-examination. Mr. Lewis testified that he was first contacted by the defendants after the Order was granted and that prior to that, his firm had not provided significant services to the defendants since 1994. Mr. Lewis testified on this point, as follows:
Q That's helpful.
When were you contacted --. Well, let me
put it this way: I understand from the evidence,
given by Mr. Cumming that you were contacted
sometime after the judgment in the case had came
down to do the work that resulted in this book.
is that correct?
A Basically, yes.
Q Okay. Can you tell me when that was?
A I'll just look at my -- Let me look back
at the file here and see when we started.
The first note I have here is from the 4th
of February.
Q Okay,
A So it would have been sometime prior to
that.
Q And I --. And you correct me if my -- if
I'm wrong at all, but I also understand
that Stothert Engineering had essentially
little to do for Thermo Tech Technologies
Inc. in the time period before being
retained for this project, back to 1994 or
so; is that correct?
A Yeah. We've kept in touch with them, but
we haven't provided any -- any significant
services through until the beginning of
this year.
Q All riqht. So --. And I take it you
work has been done for the Thermo Tech
Companies by other engineering firms in the
interim?
A. I'm aware of that, yes. |
