Gemak Trust v. Jempak Corporation, 2024 FC 82
Associate Justice Cotter - 2024-01-18
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This is a motion within a motion. The present motion is by the defendants, Jempak, for an order granting leave to file a further affidavit and what Jempak describes as supplemental written representations in connection with its pending motion for a bifurcation order that was filed in 2018. ... Like the situation in Amgen [2016 FCA 121], the Rules are silent on the matter of the filing of further evidence in the present situation, where one party seeks leave to file additional affidavit evidence on a motion after both sides have served the affidavit evidence they wish to rely on; cross-examinations have been conducted; and both sides have filed their respective motion records. The rationale and principles articulated by Justice Stratas in Amgen also apply in the present context. ... The Multiple Products Topic and the Non-Practicing Entity Topic were live issues in the action in 2018 and were raised by Jempak in the Original Bifurcation Motion Record. Jempak could have put in evidence at that time on those issues and chose not to. ... It is not in the interests of justice to grant leave to file the New Affidavit other than: the exhibits to the New Affidavit dealing with the Action History that GEMAK did not oppose, namely Exhibits A, B, J, K and L; and, paragraph 1 introducing the affiant, and paragraphs 2, 3, 11, 12 and 13 identifying those exhibits.
Decision relates to:
- T-1288-18 - GEMAK TRUST v. JEMPAK CORPORATION ET AL