Federal Court Reaffirms Importance of Viva Voce Testimony

In McCain Foods Limited v. J.R. Simplot Company 2024 FC 1729, the Federal Court considered the circumstances in which an examination for discovery of a person, other than a person examined under Rule 238 of the Federal Courts Rules, may be admitted at trial. The decision reinforces the Court’s preference for viva voce testimony and the narrow scope of Rule 290. In short, discovery transcripts can serve as a substitute only when both live testimony and commission evidence cannot be obtained.

McCain brought an action against Simplot for patent infringement of McCain’s high-electric field process for treating fruits and vegetables. One of the patent’s inventors, Dr. Goullieux, lived in France and was previously examined in 2022. Simplot sought an order under Rule 290 permitting introduction of portions of Dr. Goullieux’s discovery evidence at trial, and, in the alternative, asked the Court to issue a letter of request to the French Court requiring the inventor to give evidence in France pursuant to Rule 272. McCain opposed both requests.

Justice McHaffie adopted a relatively strict interpretation of Rule 290: a person’s examination for discovery may be used as evidence at trial where the individual is unable to testify, and their evidence cannot be obtained on commission.

Citing Boily v. Canada, 2017 FCA 180, the Court reaffirmed the principle that trial evidence is ordinarily given viva voce, not in writing. As such, discovery evidence will only be admitted under Rule 290 where there is “no real possibility” of that person being examined in the usual manner. The Court held that a party must demonstrate that the witness is unable to testify at trial for one of the reasons enumerated in Rule 290(a) and that their evidence cannot be obtained on commission as required by Rule 290(b), considering each on this “no real possibility” standard.

While Dr. Goullieux could not be compelled to attend trial in Canada, Simplot failed to satisfy the Court that Dr. Goullieux’s evidence could not be obtained on commission. The Court held that cost, inconvenience, or uncertainty alone cannot justify reliance on Rule 290. Unless there is “no real possibility” of obtaining testimony, discovery transcripts cannot substitute for trial evidence.

The Court also refused to use its discretionary powers under Rule 55 to vary or dispense with compliance with Rule 290. For Rule 55 to apply, “special circumstances” must exist. What constitutes "special circumstances" depends on the facts of each case. Simplot cited the relevance of Dr. Goullieux’s evidence, the time, effort, and expense of obtaining commission evidence, and other uncertainties. The Court rejected this argument, finding that such costs or inconveniences were not unusually disproportionate given the nature of the proceeding, its complexity, importance, and the amount in dispute.

In considering its discretion to issue a letter of request, the Court relied on Boily and noted that “all relevant circumstances are to be considered in making such an order”, including four non-exhaustive factors. The Court must be satisfied that: 

On the facts, Justice McHaffie ordered the issuance of a letter of request to the French Court for the taking of commission evidence of Dr. Goullieux. The Court held that Dr. Goullieux’s testimony was relevant to at least some of Simplot’s invalidity arguments, and her non-compellability and stated desire not to be examined both qualified as “good grounds” to not attend trial. Balancing all of the factors, including the nature of the evidence, the issues to which it spoke, and the importance of permitting Simplot the opportunity to obtain that evidence, the Court concluded that issuing a letter of request was in the interests of justice.