Court of Queens Bench of Alberta  
Citation: Questor Technology Inc v Stagg, 2022 ABQB 578  
Date: 20220908  
Docket: 1801 11473  
Registry: Calgary  
Between:  
Questor Technology Inc  
Applicant  
- and -  
Richard Stagg, AKA Ritchie Stagg, Jeffrey Nelson, AKA Jeff Nelson, Justin Bouchard and  
Emission Rx Ltd  
Respondents  
_______________________________________________________  
Reasons for Judgment  
of the  
Honourable Justice D.B. Nixon  
_______________________________________________________  
I. Introduction  
[1]  
Questor Technology Inc (Questor) is the Applicant in these proceedings. It is also the  
Plaintiff in the underlying action (the “Action”). It is making an application for the production of  
records (the “Application”).  
[2]  
Richard Stagg, Jeffrey Nelson, Justin Bouchard, and Emission Rx Ltd are the  
Respondents in this Application (collectively, the “Respondents”). They are also the Defendants  
in the underlying Action. They are making a cross application concerning the production of  
records (the “Cross Application”).  
Page: 2  
II. Issues Questions Posed  
[3] The Application and Cross Application raise a number of issues. I have framed those  
issues as follows.  
a. Is there a sufficient evidentiary basis that relevant and material records exist  
which have not been disclosed and must be produced?  
b. Is Emission Rx engaged in a line of conduct meant to deprive Questor of relevant  
and material records warranting a comprehensive production order?  
c. Is Emission Rx is compelled to produce native records, including metadata?  
d. Is Emission Rx is entitled to provide significant redactions to produced records?  
e. Is a counsel’s eyes onlyapproach an appropriate mechanism to address the  
confidentiality concerns of Emission Rx?  
III. Facts, Findings, Inferences and Remarkable Observations  
[4]  
Questor hired Mr. Nelson as a Project Engineer in approximately May 2013. Mr. Nelson  
had no incineration or combustion systems experience at the time Questor hired him.  
[5] Questor hired Mr. Bouchard as a Project Engineer in approximately May 2014. Mr.  
Bouchard had no incineration or combustion systems experience at the time Questor hired him.  
[6] In 2017, John Sutherland was the Chief Operating Officer of Questor. He asked Messrs.  
Nelson and Bouchard to develop a low-pressure waste gas combustion solution. Not long after  
that request from Mr. Sutherland and while employed by Questor, Mr. Nelson began developing  
a competing low-pressure waste gas combustion solution: Questor Technology Inc v Stagg,  
2020 ABQB 3 at para 7 [Questor].  
[7]  
Between late May and early June of 2018, Messrs. Nelson and Bouchard left Questor to  
pursue a competing venture: Questor at para 6. They pursued their venture through Emission Rx  
Ltd, which had been incorporated on November 14, 2017 (“Emission Rx”). Emission Rx has  
operated as a private corporation at all relevant times.  
[8]  
Based on intellectual property concerns, Questor initiated an injunction application  
against Emission Rx. It was heard in the summer and fall of 2019. In the decision concerning the  
injunction application, the Court concluded that Questor had a strong prima facie case  
concerning confidential information that two of the Respondents took from their former  
employer: Questor at para 29. The Court also found a serious issue to be tried concerning the  
question as to whether the individual Respondents had breached their common law duty of  
confidentiality: Questor at para 34. However, the Court declined to grant an injunction, in part  
because it found that Questor would not suffer irreparable harm if an injunction were not  
granted.  
[9]  
During the injunction application, the Respondents were to produce multiple categories  
and types of records. I understand Questor is still seeking documents to be produced. In this  
Application, Questor is again applying for a Court order for the very same production.  
Page: 3  
[10] Despite a prior court order to produce design and financial records, the Applicant alleges  
that the Respondents have produced minimal documentation. As a result, Questor alleges that it  
was forced to come to the Court to repeat its request for disclosure.  
[11] Questor further alleges that the design records should speak to the Respondent’s timeline  
and progress concerning the development of their competing technology. The Applicant asserts  
that it needs such records because they will allow its expert to determine if significant alterations,  
as the Respondents claim, were made after leaving Questor.  
[12] In their defence, the Respondents assert that they made significant modificationsto the  
Emission Rx technologys design between late May and early September 2018, which was after  
the individuals left the employment of Questor. The individual Respondents assert that Emission  
Rx did not have a viable technologyuntil these significant modifications were made by  
approximately September 1, 2018.  
[13] As I understand their argument, the Respondents advance this position to support the  
assertion that no significant design was done while they were employed at Questor, and all  
significant design or modification work was done after they left the employment of Questor.  
[14] Given the nature of the above assertions, I infer this is why the design records from both  
the timeframes of before and after the Respondents left Questor are relevant to this litigation. I  
also note that the focus of the Application as on the design records.  
[15] The Application focuses on the development of the expired patent prototype to the  
Emissions Rx line of combustors up to September 2018. The Cross Application focuses on the  
protection of confidential information.  
[16] The Respondents define the time period between late May 2018 and early September  
2018 as the formative time period (the Formative Time Period).  
[17] The Applicant asserts that the Respondents have not produced as many records for its  
review as Ms. Mascarenhas would expect based on her experience at Questor. The Applicant  
argues that the absence of design records is impeding its ability to properly advance its case.  
Given the nature of this dispute, I infer design records during the Formative Time Period (and  
perhaps an earlier time period) are critical to test the Respondents’ “complete redesign”  
narrative.  
[18] The Applicant asserts that there is evidence that the individual Respondents had in fact  
fully developed their technology prior to leaving Questor. This may have included designing and  
building a prototype, and meeting with a patent agent.  
[19] In her capacity as an affiant, Ms. Mascarenhas: (i) summarized her experience as an  
engineer in the combustion industry and at Questor; (ii) explained Questors method of  
developing combustors and generating records, including from the relevant time when Messrs.  
Nelson and Bouchard worked at Questor and learned how to engineer and design combustors;  
(iii) summarized and listed records that are typically generated during the combustor design  
process; (iv) explained how few of the typical combustor design records or accompany  
correspondence have been produced in the Respondents’ Affidavit of Records, either in volume,  
format, or metadata; and (v) detailed the numerous written requests Questors counsel made for  
the relevant and material records.  
Page: 4  
[20] Dr. Mehta was retained by Questor as an independent combustion expert. Dr. Mehta is a  
University of Calgary Professor of chemical and petroleum engineering. He has considerable  
experience in the combustion area.  
[21] In his evidence, Dr. Mehta touched on the nature of the design records, and their format,  
which would typically be created in the process of designing a combustor. He confirmed that  
additional records are needed to assess the differences in the technologies.  
[22] Ms. Mascarenhas provided evidence explaining that the Respondents’ production is not  
consistent with her experience regarding the records typically produced during the development  
of a combustor. While her experience may not be instructive in most circumstances, common  
sense tells me that her comments carry more weight in these circumstances because the  
individual Respondents were former Questor employees. Given that history, it is reasonable to  
infer that their experience was largely shaped by Questors practices.  
[23] The Respondents allege that the research, design, and development of Emission Rxs  
technology did not occur until after the individual Respondents left Questor. More specifically,  
the Respondents have asserted that they made significant modificationsto the Emission Rx  
technologys design between late May 2018 and early September 2018, which is the Formative  
Time Period.  
[24] The individual Respondents further assert that Emission Rx did not have a viable  
technologyuntil these significant modificationswere done. For purposes of this Application,  
I accept those assertions by the Respondents. The underlying question, however, is when those  
“significant modification” were made by the Respondents. Common sense suggests that the  
design records generated during the Formative Time Period (and perhaps an earlier time period)  
are of significant importance to Questors claim.  
[25] Based on the scope of the Application and my review of the Third Amended Statement of  
Claim, I have determined that the design records and associated correspondence for the time  
period: (i) before the individual Respondents left Questor, and likely extending back to the date  
Emission Rx was incorporated; and (ii) after the individual Respondents left Questor, and until  
on or about September 1, 2018 when the Respondents purportedly made significant  
modificationsto its prototype (being the Formative Time Period), are relevant to the timing of  
the design and development of the Respondents technology (collectively, the “Developmental  
Time Period”).  
[26] The Respondents have only produced 14 discrete design records from the Developmental  
Time Period. Many of those design records are redacted, with six of these records being heavily  
redacted: Questor Technology Inc v Stagg, 2021 ABQB 636 at para 8 [Strike Reasons].  
[27] Questor asked Dr. Mehta to opine on whether the modifications made to the  
Respondents’ design during the Developmental Time Period were significant. Dr. Mehta advised  
that he requires additional records to assess the differences in each partys technologies before he  
can provide an opinion.  
[28] In their submissions, the Respondents confirmed that they have not produced certain  
records in their native file format. Native file documents, including in three-dimensional form,  
provide significantly more information than PDF scans of two-dimensional drawings.  
[29] The Respondents also confirmed that they have not produced design records for non-RC  
line combustors or confidential financial records. Concerning this admitted non-disclosure, the  
Page: 5  
Respondents stated that this information not being produced because of issues concerning  
relevancy and confidentiality. I address those issues below.  
[30] Based on my understanding of the arguments, the native design records will assist  
Questor in assessing the claims of the Respondents about whether they made significant  
modifications during the Developmental Time Period and whether the Respondent’s have  
exploited Questors technology.  
[31] Questor asserts that the design records produced to date do not include metadata.  
Metadata discloses the author of electronic records, and when records were created and  
modified. Based on my understanding of metadata, such evidence assists in assessing issues  
relating to the timing of development and design of the technology in dispute.  
[32] The evidence indicates that the Respondents also have refused to permit Questor to  
inspect physical samples, of the Respondents technology. Based on my understanding, the  
inspection of the Respondents combustors will allow Questor to confirm: (i) Emission Rxs use  
of Questors technology; and (ii) whether Emission Rxs newer models continue to use the same  
patent pendingtechnology that Mr. Bouchard and Mr. Nelson assert they developed in early  
2018. Questor asserts this information is essential to comparing the competing low-pressure  
technologies.  
[33] To complete his comparison of each partys low-pressure technologies, I understand Dr.  
Mehta requires operating manuals. Questor has produced its operating manuals. Based on my  
review of the evidence, Emission Rx has produced two operating manuals. While I am not in a  
position to determine whether the operating manuals produced by Emission Rx are adequate in  
the circumstances of this dispute, implicit in Dr. Mehta’s comments is the suggestion that he  
does not have all of the information required to make a proper assessment.  
[34] Ms. Mascarenhas provided evidence that Emission Rx has only applied for a single  
patent, and that Emission Rx has advertised both its previous, and its current line of combustors  
as being patent pending. As a result, Questor asserts that the Respondents’ description of its  
current line of combustors as being patent pendingcan only be a reference to the patent filed  
on June 19, 2018. However, the Respondents have refused to produce any design records related  
to its past and current series of combustors, including its RC-series combustor, C-series  
combustor, EF-series combustor, and E-series combustor.  
[35] After Questor filed the Application, the Respondents delivered a supplementary affidavit  
of records which included 11 additional unique design records, all of which are redacted. These  
design records relate to the Respondents first two deals with Gear Energy Ltd and Devon Energy  
Corporation between December 2018 and February 2019. The evidence is that the Respondents  
have not provided subsequent design records, which would allow Questor to assess the patent  
pendingtechnology in their more recent combustors.  
[36] This litigation is coloured by Questor’s view that Emission Rx has had a propensity to  
evade its production obligations. In three past instances, despite broad production obligations,  
Emission Rx responded with piecemeal, and redacted records, or no records whatsoever: Strike  
Reasons at para 17.  
[37] The Applicant asserts that the Respondents have failed to produce critical design records.  
Based on my review of the evidence, there is merit to Questor’s concern.  
Page: 6  
[38] The initial evidence of Mr. Nelson and Mr. Bouchard is that they worked on a design  
which modified an expired patent between April and May 2018. Mr. Bouchard subsequently  
resiled from this evidence, asserting that he designed Emission Rxs original prototype on his  
own after leaving Questor in late May 2018.  
[39] The Applicant asserts that Mr. Bouchard attempted to support the narrative that no  
designing took place until he left Questor by stating that the Respondents first obtained a license  
for SolidWorks on May 23, 2018. To support this May 23, 2018 dated, Mr. Bouchard attached a  
receipt for the purchase of SolidWorks to his affidavit.  
[40] On cross-examination, Mr. Bouchard admitted that it was plausible that Emission Rx  
obtained a SolidWorks license on April 5, 2018. His evidence on cross-examination is consistent  
with the initial evidence that Mr. Nelson and he provided on this issue.  
[41] The evidence of Mr. Bouchard describes two prototypes designed and fabricated by  
Emission Rx during the Developmental Time Period. The first was the Prototypeand the  
second as the Alternative Size Prototype.  
[42] Mr. Bouchard gave additional evidence suggesting that he designed the Alternative Size  
Prototype on May 25, 2018. On cross-examination, Mr. Bouchard admitted that he had circulated  
a “mock-up” design of the Alternative Size Prototype that he had made using the SolidWorks  
program to Mr. Nelson on May 22, 2018. While I am not in a position to make any finding on  
these matters, I note the discrepancy. Given this conflicting evidence, it is probable that the  
design of the Alternative Size Prototype began before May 25, 2018, and perhaps significantly  
before that date.  
[43] During cross-examination, Mr. Bouchard refused to answer questions meant to challenge  
his affidavit evidence concerning the timing of development of the Respondent’s technology.  
The documentary evidence appears to support the Questor assertion at the Respondents  
developed what they described as the key features of their technology as early as March 2018.  
[44] Mr. Nelson and Mr. Bouchard provided evidence describing three key features that make  
Emission Rxs technology unique: (i) a double-hull stack; (ii) a unique air intake design that  
pulls air in from the top of the stack; and (iii) the elimination of the need for refractory. Emission  
Rxs patent describes and relies upon these same key features. Based on my review of the  
evidence, I note that these same design features were referred to in business plans drafted by the  
Respondents that pre-date April 2018.  
[45] Mr. Bouchard also provided corrected evidence in his affidavit in stating he opted to  
delete native SolidWorks design files when Emission Rx decided to use an alternative cloud-  
based computer assisted design (“CAD”) program called OnShape. His decision to delete was  
allegedly due to OnShape having a limited storage capacity. In his corrected affidavit, Mr.  
Bouchard indicated that he deleted the three-dimensional version of the Alternate Size Prototype  
design from his computer and Emission Rx OnShape account in late September or early October  
2018. While I commend Mr. Bouchard for his initiative in correcting his affidavit, that does not  
end the inquiry.  
[46] On cross-examination, Mr. Bouchard admitted he did not actually know whether  
OnShape had a storage limit. He further admitted that OnShape provides functionality to undo”  
any edits to digital designs in perpetuity. If that is the case, the OnShape system has the technical  
ability to revert any changes made to a design drawing until the date the design was created.  
Page: 7  
[47] Given these latter admissions, I query the explanation Mr. Bouchard initially gave  
concerning his reasons for deleting SolidWorks design files. His assertions concerning a storage  
limit raises more questions than it answers.  
[48] On cross-examination, Mr. Bouchard stated his general practice was to keep all his pads  
of paper on which he makes notes. Mr. Nelson previously provided evidence that after Emission  
Rx built its Prototype, Mr. Bouchard and he worked on paper modificationsto make the  
Prototype patentable.  
[49] Mr. Bouchard subsequently accepted an undertaking to look through paper records to see  
if he had any records relating to the development of the designs. In a subsequent answer to that  
undertaking, Mr. Bouchard asserted that he had no notes from the Developmental Time Period,  
except for the hand drawings by him which showed the design of the Prototype.  
[50] Given the context, I find it remarkable that no such paper records could be located in  
view of: (i) the apparent importance of this project; and (ii) the earlier statement by Mr.  
Bouchard that it was his general practice to keep all such pads of paper. Again, his assertions  
concerning record keeping raise more questions than it answers.  
[51] During cross-examination, Mr. Bouchard provided evidence that he fabricated a  
substantially complete combustor stack on May 19, 2018. Based on my understanding of  
relevant timelines, May 19 is the day after he left his employment with Questor.  
[52] Despite describing himself as not being a great welder, Mr. Bouchard alleged he was able  
to fabricate a combustor stack in one day. This included adding legs to the structure, formulating  
what appears to be a double hull and mesh entry points for air intake. He apparently did this  
using scrap metal and welding equipment borrowed from the Aerotech Group of Companies.  
[53] In my view, Mr. Bouchard’s alleged achievement of fabricating a substantially complete  
combustor stack on May 19, 2018 would be a remarkable accomplishment in one day. I view the  
alleged accomplishment as remarkable because to affect this result, the Respondents’ design  
would have to have been sufficiently developed so that Mr. Bouchard could source parts and  
fabricate the prototype combustor stack containing the key underlying features of Emission Rxs  
technology by May 19, 2018. While there is not enough evidence to make a finding on this  
alleged accomplishment at this juncture, I venture to say that the alleged accomplishment is so  
remarkable that it is unlikely to be true. Mr. Bouchard certainly could have gotten a start on a  
prototype on a particular day (possibly May 19, 2018), but that is quite different than the  
assertion that he built the stack in one day.  
[54] Mr. Bouchard also provided evidence concerning the deletion of records. In his affidavit,  
he stated Emission Rx had used OnShape since July 24, 2018, and deleted SolidWorks records  
around this time. That July 24th date is prior to when the Respondents were served with the initial  
Statement of Claim. As a reference, the initial Statement of Claim was date stamped by the Court  
on August 14, 2018.  
[55] In response to undertakings, Mr. Bouchard clarified that Emission Rx did not commence  
using OnShape until September 25, 2018, and deleted three-dimensional SolidWorks drawings in  
late September or early October of 2018. That revised time period suggests that he deleted  
SolidWorks after the Respondents were served with the initial Statement of Claim in this Action.  
This shifting story and the critical timing raise sufficient flags that it needs to be considered  
further.  
Page: 8  
[56] Mr. Bouchard later purportedly recycled his laptop that held the SolidWorks designs in  
January or February 2020. I find the timing of the recycling of his laptop to be another  
remarkable event in the context of this dispute.  
IV. The Law  
A. Disclosure Obligations Records  
[57] In civil litigation, parties to a dispute are expected to ensure a dispute is resolved justly  
and fairly, and in a timely and cost-effective way: Alberta Rules of Court, Alta Reg 124/2010,  
Rule 1.2 [Rules]. These expectations extend to the disclosure of records.  
[58] The purpose of Part 5 of the Rules is to encourage the early disclosure of records, to  
discourage conduct that unnecessarily or improperly delays proceedings, or unnecessarily  
increases their costs, and to facilitate the resolution of issues in dispute. The court is provided  
broad authority to enforce these obligations. This authority is inherent in Rule 5.1.  
[59] In accordance with the principles inherent in Rule 5.1, parties to civil litigation bear an  
onus to produce all relevant and material records in their possession through an affidavit of  
records: Kaddoura v Hanson, 2015 ABCA 154 at para 17; see also Rule 5.6.  
[60] The right to obtain production of records does not depend on a litigant proving with  
certainty that some relevant records exist in order for it to be produced: Strike Reasons at para  
79. Rather, parties bear an ongoing onus to disclose relevant and material records that a party  
finds, creates, or obtains control of, and which have not been previously disclosed: Rule 5.10.  
[61] A partys proactive obligation to produce relevant and material records promotes the  
objectives of the Rules and ensures the timely, cost-effective resolution of disputes. This  
obligation is fundamental to the administration of justice.  
[62] In litigation, the starting point for any decision to compel the production of information  
are the pleadings to determine whether the sought records are relevant and material: Geophysical  
Service Incorporated v NWest Energy Corp, 2017 ABQB 232 at paras 19 [NWest Energy]. A  
record will be relevant and material if it can reasonably be expected to significantly help  
determine issues raised in the pleadings or ascertain evidence to do so: Parks v McAvoy, 2020  
ABQB 675 at para 7 [Parks].  
[63] At the production stage, a litigant does not need to demonstrate conclusively that the  
records sought will provide concrete assistance, only a plausible line of argument that the  
documents will be probative to its claim: Alexander v Sun Life Assurance Company of Canada,  
2016 ABQB 445 at para 38 [Alexander]. A court should not restrict the scope of discovery  
where doing so might impact the ability of the trial judge to adjudicate the claim: CNOOC  
Petroleum North America ULC v 801 Seventh Inc, 2021 ABQB 81 at para 16.  
B. Disclosure Obligations Property  
[64] Records and property are distinct matters, although both maybe relevant in the context of  
litigation. Because of the distinction, the Rules outline the need for an application if a litigant  
wants to inspect property. This is provided for in Rule 6.26.  
[65] Generally, the courts are liberal in giving orders for the inspection of property: Rule  
̂
6.26(a); Williams A Stevenson & Jean A Cote, Alberta Civil Procedure Handbook, vol 1  
́
Page: 9  
(Edmonton, Alberta: Juriliber, 2022) at 6-105. However, an order for the inspection of property  
often requires access to enter real property that is owned by a third party, perhaps the Defendant.  
An order to enter land or premises for the purpose of carrying out an inspection is provided for in  
the Rules: see Rule 6.26(c). Given the nature of this intrusion, the court should ensure that this  
matter is properly considered.  
C. Anton Piller Orders  
[66] An Anton Piller order is a form of civil search warrant that displaces the normal rules on  
discovery of records: Secure 2013 Group Inc v Tiger Calcium Services Inc, 2017 ABCA 316 at  
para 56 [Tiger Calcium]; see also Catalyst Partners Inc v Meridian Packaging Ltd, 2007  
ABCA 201 at para 6 [Catalyst Partners]. An Anton Piller order is typically sought on an ex  
parte basis.  
[67] It is “an exceptional remedy and should only be granted on clear and convincing  
evidence. Unless sparingly granted and closely controlled, an Anton Piller order is capable of  
causing great prejudice and potentially irremediable loss”: Tiger Calcium at para 57; British  
Columbia (Attorney General) v Malik, 2011 SCC 18 at para 5.  
[68] The prerequisites for an Anton Piller order are as follows: Tiger Calcium at para 58; see  
also Catalyst Partners at para 7; and Celanese Canada Inc v Murray Demolition Corp, 2006  
SCC 36 at para 35.  
a. The plaintiff must demonstrate a strong prima facie case.  
b. The damage to the plaintiff of the defendant's alleged misconduct must be very  
serious.  
c. There must be convincing evidence that the defendant has in its possession  
incriminating documents or things.  
d. It must be shown that there is a real possibility that the defendant may destroy  
such material before the discovery process can do its work.  
[69] Since the raison d'etre of an Anton Piller order is to preserve documents that might  
otherwise be destroyed, the fourth prerequisite is of key importance: Tiger Calcium at para 58.  
Mere speculation of the destruction of evidence is not sufficient to warrant the granting of an  
Anton Pillar order because that would not meet the “real possibility” threshold.  
[70] Notwithstanding the legal test to obtain an Anton Piller order is well established, its  
application and the crafting of an appropriate order remains a challenge. The issuance of such an  
order without notice should only occur in exceptional circumstances because it authorizes the  
passive intrusion of a privately orchestrated search on the privacy of a business competitor or  
other target party: Celanese Canada at para 30. Even when an Anton Piller order is being  
considered by a court in the context of notice, it should be used cautiously. In either context, the  
“terms should be carefully spelled out and limited to what the circumstances show to be  
necessary”: Celanese Canada at para 32.  
[71] The standard of disclosure is not met if the affiant’s opinions are based on speculation  
instead of observation: Celanese Canada at para 37. In my view, this guideline applies whether  
or not the Respondent has notice of the Anton Pillar application.  
Page: 10  
D. Patent Agent Privilege  
[72] Patent agent privilege is a new concept in Canada. Prior to 2016, communications  
between patent agents and their clients were not privileged in Canada: Janssen Inc v Sandoz  
Canada Inc, 2021 FC 1265 at para 7 [Janssen]. This changed in June 2016 when section 16.1  
was added to the Patent Act, RSC 1985, c. P-4 [“Patent Act”].  
[73] The legislative framework of section 16.1(1) of the Patent Act has three elements, which  
must be satisfied for the statutory privilege to apply. The legislative framework does not enable  
the court to consider or apply other analogous factors, nor does it expressly place patent agents  
and lawyers on equal footing in respect of the privilege that attaches to their client  
communications: Janssen at para 14.  
[74] The three statutory elements for patent agent privilege are as follows. First, the subject  
communication must be between the patent agent and their client: section 16.1(a). Second, it  
must be intended that the subject communication is to be confidential: section 16.1(b). Third, the  
subject communication must be made for the purpose of seeking or giving advice with respect to  
any matter relating to the protection of an invention: section 16.1(c).  
[75] It is important to note that the statutory privilege granted to patent agents is limited to  
seeking or giving advice with respect to any matter relating to the protection of an invention:  
section 16.1(1)(c) of the Patent Act; Janssen at para 14. As a result, the statutory privilege is not  
all encompassing.  
[76] When considering the application of section 16.1, the context must be remembered.  
Patents are a statutory scheme. There is no inherent common law right to a patent. An inventor  
gets her or his patent according to the terms of the Patent Act, no more: Apotex v Sanofi, 2008  
SCC 61 at para 12. Equally, there is no common law right to patent agent privilege. As a result,  
the scope of the privilege is limited by the language section 16.1 of the Patent Act.  
[77] The scope of the privilege inherent in section 16.1 of the Patent Act must be considered  
in any dispute between parties. The presence of some privileged communications in a document  
cannot be used to shield otherwise relevant information from discovery. Where a document  
includes both privileged and non-privileged information, only those communications that meet  
the requirements of section 16.1 of the Patent Act can be redacted: Janssen at para 23. Not all  
communications with a patent agent will be privileged; only those that are made for the purpose  
of “protecting an invention”. As a result, not all patent strategies will attract patent agent  
privilege. Simply stating that a communication relates to patent strategy is insufficient to meet  
the test for patent agent privilege: Janssen at para 23.  
[78] As a closing comment, four principles flow from section 16.1 of the Patent Act. First the  
legislative privilege for patent agent privilege is no broader than the categories available for  
solicitor-client privilege or litigation privilege, and it is likely narrower. Second, the party  
asserting patent agent privilege has the burden of establishing it, and it must be based on  
evidence. Third, patent agent privilege is not a blanket privilege that applies to patent agent file  
as a whole. In particular, there is no shielding of non-privilege records in the patent agent file.  
Fourth, if there is a claim for patent agent privilege, the court should review the disputed  
documents to determine whether privilege has been properly asserted. This latter point is  
particularly relevant at this juncture because patent agent privilege is a new concept in Canada,  
and a cautious approach is appropriate in this context.  
Page: 11  
V. Analysis  
[79] This Application and the corresponding Cross Application is yet another step in an  
ongoing, and hotly contested, battle between the Applicant and the Respondents.  
A. Overview  
[80] Questor seeks records responsive to its claims that the Respondents’ low-pressure  
technology was developed while the individual Respondents were Questor employees or  
developed copying all or some of Questors design. As I stated above, the focus of this  
Application is on the design records produced by the Respondents, and the history of those  
records. Further, Questor seeks to test the Respondents assertion that they made significant  
modifications to the Emission Rx technology prior to September 1, 2018.  
[81] Questor seeks disclosure of representative design records of Emission Rxs recent  
technology, advertised as patent pending. These records allegedly contain the same features  
disclosed in the patent application that Mr. Bouchard and Mr. Nelson say they developed.  
[82] Questor asserts the Respondentspatent pending technology was developed during the  
individual Respondents’ employment with Questor or using Questors technology. On that  
premise, the Applicant asserts that all of Emission Rxs records related to, or incorporating, its  
patent application may be relevant to Questors claims.  
[83] Likewise, Questor seeks the operating manuals for Emission Rxs RC-series, C-series,  
EF-series and E-series Combustors. These records are material because Dr. Mehta has stated that  
he requires those operating manuals to complete his assessment of each partys low-pressure  
technologies.  
[84] Questor also seeks the production of financial records in order to determine damages. The  
assertion is that Emission Rxs lines of combustors incorporate the technology in its patent  
application, which Questor claims was developed during the individual Respondents’  
employment with Questor or using Questor's technology. For this reason, the Applicant asserts  
the Emission Rxs business records are broadly relevant and material to Questors claim.  
[85] To the extent such records are relevant and material to Questors claim, Emission Rx has  
an onus to produce these records. That said, I reiterate that the Cross Application has merit  
insofar as the Respondents want to ensure that appropriate steps are taken to protect confidential  
information.  
B. Is Emission Rx Engaged in a Pattern of Inadequate Production and Delay?  
[86] Where a party is found to be deliberately trying to thwart the discovery process by not  
disclosing relevant and material records, a court may make a more substantive production order:  
Innovative Health Group Inc v Calgary Health Region, 2008 ABCA 219 at para 39. The Rules  
permit this Court to make any order necessary to achieve the orderly disclosure of records: Rule  
5.1(2).  
[87] In other circumstances, this Court has found it reasonable to order that the plaintiff be  
entitled to the immediate access to a defendant's entire computer hard drive because the plaintiff  
satisfied the court that the defendant had not complied with its disclosure obligations, and the  
missing records were likely stored on the hard drive: Spar Aerospace Limited v Aerowerks  
Engineering Inc, 2007 ABQB 543 at para 79 [Spar] affd 2008 ABCA 47. In a similar vein, a  
court may make a general production order, declaring a party has failed to meet its production  
Page: 12  
obligations, has interfered with the proper and efficient administration of justice, and directing a  
party to produce large general categories of records: Weatherford Canada Partnership v Addie,  
2010 ABQB 477 at paras 51-52.  
[88] Questor asserts that the Respondents have demonstrated a propensity to evade its  
production obligations. It asserts that the Respondents’ behavior warrants condemnation from  
this Court and a substantial production order tailored to resolve the ongoing production issues  
that have plagued this litigation. Using Spar as a precedent, Questor seeks an Order pursuant to  
Rule 5.1(2) of the Rules of Court: (i) granting it general access to the Respondents’ OnShape  
licensed account in order to inspect the development of the Respondent’s technology; (ii)  
granting it a copy of Mr. Bouchards hard drive; and (iii) granting it access to the Respondents’  
personal and business email accounts to search for any correspondence related to the  
development of Emission Rxs technology.  
[89] Questor seeks access to the OnShape licensed account held by the Respondents because  
that will enable it to review the three-dimensional drawings which Mr. Bouchard attests exist and  
revert edits to these drawings which Mr. Bouchard admits is part of OnShapes functionality. It  
asserts that such access will: (i) permit Questor to understand how Emission Rx developed its  
technology; and (ii) give the Applicant insights as to whether Emission Rx incorporated any of  
Questors technology. Questor also asserts that a copy of Mr. Bouchards hard drive will permit  
the Applicant to review whether any additional design records exist.  
[90] All of these sought orders are intrusive. Most intrusive is the Questor request that I grant  
it access to the personal and business email accounts of the Respondents.  
[91] Questor asserts that the correspondence between the Respondents on their personal and  
business email accounts will permit the Applicant to review the discussions concerning the  
development of the Respondents’ technology and provide additional information with regards to  
the timing of the development of the relevant technology.  
[92] While I found some aspects of the Respondents above story to be “remarkable”, it is  
important to balance that preliminary determination against the intrusive nature of the orders  
requested by Questor.  
[93] Based on the facts and analysis, I find the evidence just falls short of what I need to hold  
that Emission Rx is engaged in a pattern of inadequate production and delay. Without the benefit  
of viva voce evidence, I cannot find that the Respondents possess additional relevant, let alone  
“incriminating”, records. As I alluded to above, I am particularly cautious in these circumstances  
because of the degree of intrusiveness associated with the Applicant’s initiative.  
[94] I acknowledge that Mr. Bouchard admitted that he deleted the early SolidWorks files as  
late as September or early October 2018. However, he initially stated that he did so to save  
computer storage space. While he later admitted in cross-examination that he did not know  
whether OnShape had a storage limit, I am not convinced, on a balance of probabilities, that he  
was wilfully engaged in a pattern of inadequate production and delay.  
[95] To the credit of the Respondents, Emission Rx did produce the final PDF version of the  
Alternate Size Combustor design drawing in this Action. Mr. Bouchard also agreed that he  
recycled a laptop in early 2020. That said, the evidence is that he recycled the laptop after it  
could no longer be turned on. Further, the recycling of his laptop occurred after the Respondents  
swore their initial affidavit of records producing 627 documents. In the circumstances, there is no  
Page: 13  
evidence that Mr. Bouchard did not review his old computer in the course of that production.  
Given those particulars, we need to be cautious before we jump to conclusions.  
[96] In advancing its assertions that Emission Rx was engaged in a pattern of inadequate  
production and decision making, Questor is seeking more than a “substantive production order”.  
When viewed in context, the substance of what Questor is seeking is in the nature of an Anton  
Piller order. It does so relying on the Spar case.  
[97] The weakness in Questor’s pursuit is that Spar is an Anton Piller decision, and it met the  
prerequisite tests. I make this comment because in Spar, the production being compelled was  
material seized under Anton Piller order: Spar at para 1. The underlying material in that case had  
been returned to the respondent with the understanding that it would promptly produce the  
material in an affidavit of records: Spar at para 23. The respondent in the Spar case did not do  
so, and the Court accordingly ordered it to produce “the imaged hard drives and all records, in  
their entirety, seized during the execution of the Anton Piller order”: Spar at para 9.  
[98] In contrast, I am of the view that Spar has no application to the scenario involving the  
Respondents. As framed by the Applicant, this case is a standard application for a further and  
better affidavit of records, and related relief. I make this comment because Questor framed the  
Application without reference to Anton Piller relief.  
[99] Further, I make the above determination because the prerequisite tests for an Anton Piller  
order are not all met. While the parties in this case are taking hard line positions, I am not  
convinced, on a balance of probabilities, that there is a real possibility that Emission Rx or any of  
the individual Respondents may destroy relevant material before the discovery (questioning)  
process is completed.  
[100] While Mr. Bouchard may have done some inappropriate things, I am not convinced, on a  
balance of probabilities, that he did so with malice intent. Further, if I am wrong and the  
substance of the relief sought is in the nature of an Anton Piller order, it is draconian and  
unwarranted in these circumstances to give Questor direct access to the records sought. There are  
other solutions to consider in this instance that are more balanced.  
C. Has Questor Established a Clear Legal and Factual Foundation that Additional  
Records Exist?  
[101] A party seeking additional production must provide a legal or factual foundation that  
additional relevant and material records exist: Parks at para 10. Court must be especially  
cognizant and vigilant when only one party has access to the records: Canadian Natural  
Resources Limited v ShawCor Ltd, 2013 ABQB 230 at para 19 [ShawCor].  
[102] Where the evidence suggests that not all relevant and material records have been  
produced, a further and better affidavit of records may be ordered: ShawCor at para 19.  
[103] Concerning both the Prototype and the Alternative Size Prototype units, I find the  
production of design drawings by Emission Rx has been insufficient. I make this determination  
because the Respondents have only disclosed hand drawings by Mr. Bouchard related to the  
design and fabrication of a combustor prototype. The evidence suggests that this cannot be the  
only design produced for the prototypes in advance of its fabrication and the Respondents  
application for a patent. I make this comment for a multitude of reasons.  
Page: 14  
[104] First, Mr. Nelsons previously sworn evidence was that between April and May 2018,  
Mr. Bouchard and he conceptualized an experimental design based on an expired patent they had  
discovered. Mr. Bouchard also admitted that Emission Rx obtained a SolidWorks license on  
April 5, 2018.  
[105] Notwithstanding the alleged efforts of the Respondents between April and May 2018 and  
the admitted acquisition of the SolidWorks licence in early April 2018, Emission Rx has not  
produced any CAD based design records that were created between April 5, 2018, and May 25,  
2018. In my view, it defies common sense that an emerging Emission Rx incurred the costs of a  
SolidWorks license in April 2018 without any intention to use and produce design drawings  
during this period.  
[106] Second, the Respondents described the key components of its technology as early as  
March 5, 2018. It was referred to in the March 2018 business plan. Given these facts, common  
sense tells me that the Respondents where working on the subject technology weeks, if not  
months, before May 25, 2018. This common-sense approach is inferentially supported by the fact  
that Emission Rx was incorporated in November 2017.  
[107] Third, Mr. Bouchard was allegedly able to source parts, and then fabricate a combustor  
stack containing the key underlying features of its patented design, entirely on May 19, 2018. As  
mentioned above, parts would only be selected and ordered once a reasonable design had been  
established. It defies belief that the Respondents did not create CAD drawings as part of this  
process, particularly since Emission Rx went to the trouble of obtaining a license for SolidWorks  
on or about April 5, 2018.  
[108] Fourth, the Respondentsearliest produced CAD design drawing of the Alternative Size  
Prototype was purportedly completed by Mr. Bouchard on May 25, 2018. However, the evidence  
suggests the Respondents circulated substantially complete drawings in advance of this date. I  
view this as being an inherent inconsistency.  
[109] Fifth, the evidence of Ms. Mascarenhas is that a large number of records are typically  
made in advance of filing for a patent. While I acknowledge the Respondents’ assertion that the  
filing in June 2018 was only a provisional patent application, common sense again tells me that  
Emission Rx would have given some thought to the underlying technology. I am also of the view  
that the Respondents would have documented at least some preliminary thoughts concerning that  
technology. In this regard, the evidence is that the Respondents contacted a patent agent in early  
2018. Consistent with my above comments, presumably by the time the Respondents contacted  
the patent agent they had concluded that they had invented patentable technology. However, the  
Respondents have produced few design records and correspondence demonstrating a design in  
advance of, say, June 2018. To reiterate my above comments, this defies common sense.  
[110] The evidence also suggests the Respondents have failed to produce a multitude of  
OnShape design records in this litigation. As mentioned above, since all of the Respondents’  
lines of combustors appear to rely on the technology described in its patent application, each of  
these designs may be relevant to Questors claims. However, the Respondents have not disclosed  
any design drawings related to Emission Rx's more recent lines of combustors.  
[111] As also mentioned above, Mr. Bouchard acknowledged that OnShape permits unlimited  
undos”, thereby permitting it to revert its drawings for review on an iterative design basis.  
However, the evidence is that Emission Rx has not produced any such drawing records.  
Page: 15  
[112] Likewise, Emission Rx has not produced any up-to-date correspondence relating to its  
patent. Further, the evidence is that Emission Rx has not produced any up-to-date financial  
records.  
[113] In summary, when common sense is applied to the above question, I am of the view that  
Questor has established a clear legal and factual foundation that additional records exist. In  
making this determination, I emphasize that Questor does not need to demonstrate conclusively  
that the records sought will provide concrete assistance; it only needs to establish a plausible line  
of argument that the records exist and will be probative to its claim: Alexander at para 38. Based  
on this determination, I find that there is a sufficient evidentiary basis that relevant and material  
records exist which: (i) have not been disclosed; and (ii) must be produced.  
D. Must Emission Rx Produce Native Records?  
[114] Where records exist in multiple formats, including their native format, they must be  
produced: Bard v Canadian Natural Resources, 2016 ABQB 267 at para 96 [Bard], citing  
2038724 Ontario Ltd v Quiznos Canada Restaurant Corp, 2012 ONSC 6549 at paras 128-  
131[Quizno’s]. The production of documents in non-native format is not as meaningful and does  
not permit the plaintiff to take full advantage of available technology as documents available in  
their native format: Gamble v MGI Securities, 2011 ONSC 2705 at para 22.  
[115] In Bard, the Court considered whether it should order a party to produce records in a  
format importable into Microsoft Excel: Bard at paras 96-115. The party resisting disclosure  
argued that it did not keep records in this file format and that it would be significantly costly for  
it to produce the files: Bard paras 101-104. Notwithstanding the arguments of the resisting party  
in Bard, the Court in that case ordered the native files to be created and produced: Bard at para  
125. In doing so, the Court noted the importance of usable files in resolving disputes:  
Usability is as much a concern for a litigant as it is for the Court. Producing  
records in an unusable format undermines procedural fairness and just results. It  
does not help to narrow the issues in dispute, and not only impairs the plaintiffs  
ability to prove its case, but also threatens the Courts ability to understand the  
evidence put before it...: Bard at para 115.  
[116] To the extent that Emission Rx possesses design records in their native format, they are  
obliged to produce such records.  
[117] Mr. Bouchard provided evidence that Emission Rx uses the OnShape software and does  
not save discrete three-dimensional native design files while using this program. He suggests that  
Emission Rx only maintains final versions of each design drawing on the OnShape server.  
[118] Notwithstanding those comments, Mr. Bouchard acknowledged that OnShape is capable  
of creating three-dimensional drawings. He admitted that OnShape has the functionality to revert  
final design drawings indefinitely, meaning that an OnShape user can see every single edit made  
to a design file since the file was created.  
[119] Questor has provided evidence that three-dimensional drawings provide significantly  
more information than what is discernable from files in PDF format. Further, the evidence is that  
three-dimensional design records permit Questor to better assess the Respondents’ claims as to  
whether significant modifications were made to the technology and whether the Respondents  
exploited Questors technology in the development of its own low-pressure technology.  
Page: 16  
[120] In summary, based on my review of the facts and evidence, I have determined that  
Emission Rx must produce native records. Subject to my further comments below, I direct that  
Emission Rx produce three-dimensional drawings in native format, including the revision of any  
drawings as necessary to show the development of Emission Rxs technology. Further, Emission  
Rx is required to produce any SolidWorks drawings imported into OnShape.  
E. Must Emission Rx Produce Records Containing Metadata?  
[121] Metadata is a producible record where relevant and material: Spar at para 75-76. Where  
the timing of the treatment of records, including when they were modified, and the dates and  
tracking routes of emails are at issue in litigation, metadata will be producible: Spar at para 76.  
[122] Based on my review of the evidence, the metadata records related to the Developmental  
Time Period are important because Questor seeks to test when the Respondents developed their  
design and when, if at all, the Respondents made significant modifications to these designs.  
Accordingly, the timing of records is in issue and metadata is a relevant and material record in  
this litigation.  
[123] In summary, based on my review of the facts and evidence, Emission Rx must produce the  
metadata. Subject to my further comments below, I direct that Emission Rx produce the metadata,  
including the records related to the Developmental Time Period.  
F. Were the RespondentsRecords Inappropriately Redacted?  
[124] Emissions Rx heavily redacted the records it produced. Of the 14 discrete design records  
the Respondents produced in advance of this Application, each of them contained redactions. Of  
those, six were heavily redacted. Further, the financial records produced by Emission Rx were  
also heavily redacted.  
[125] A party can redact portions of records that are privileged or otherwise not relevant: Demb  
v Valhalla Group Ltd, 2014 ABQB 554 at paras 60-61. The proper procedure is to disclose only  
the relevant portion of the document or disclose the entire document with a statement that the  
irrelevant portion, or the component that is not material, has been suppressed: NWest Energy at  
paras 31-32.  
[126] However, if the court is satisfied the redacted information is relevant and not privileged,  
it may order the production of the unredacted records: Rule 5.11. If there is a legitimate dispute  
whether information has been improperly redacted, the court remains the ultimate safeguardto  
ensure full and fair discovery and may inspect the records at issue: Canadian Natural Resources  
Limited v ShawCor Ltd, 2014 ABCA 289 at paras 63-65.  
[127] Questor asserts that the design drawings produced by Emission Rx were improperly  
redacted. In considering the assertion advanced by Questor, I note that the Respondents have  
made no assertion that records have been redacted based on privilege or that irrelevant portions  
have been redacted from these records.  
[128] As mentioned above, Questor retained Dr. Raj Mehta as an expert. He confirmed he  
cannot compare the partiescompeting technology based on the redacted records provided by the  
Respondents. As a result, Questor seeks unredacted records to assess whether the Respondents’  
designs during the Developmental Time Period reveal substantial similarities to Questors  
technology. Since the unredacted portions of the records are necessary for Questor to establish its  
claim and to test the Respondents assertion that it made significant modifications to its design  
Page: 17  
after departing from Questor, I am of the view that unredacted records are relevant and material  
to this litigation. This determination is subject to claims of privilege.  
[129] This Court ordered the Respondents to produce a copy of [the Emission Rx] financial  
records to date: Strike Reasons at para 20. After being so ordered, Emission Rx provided, on a  
counsel’s eyes only basis, a single financial record. It was a three-page financial statement, only  
containing revenue in connection with combustor sales, and only for a six-month time period –  
December 1, 2018 to May 31, 2019. Since that time, Emission Rx has only provided a single set  
of updated financial statements with significant redactions.  
[130] In my review of its pleadings, I note that Questor claims an accounting of profits if it is  
successful in this Action. That being the case, I am of the view Emission Rxs accounting  
records are relevant to Questors claim. The redacted financial records provided to date do not  
provide sufficient information for Questor to determine the scope of its claim for damages.  
[131] In summary, based on my review of the facts and evidence, Emission Rx must produce  
the relevant and material documents without redaction. This determination is subject to a  
qualification for privileged documents. It is also subject to my further comments below. But for  
those limitations, I direct that Emission Rx produce all relevant and material records in  
unredacted format, including the financial records.  
G. Is Questor Seeking Anton Pillar Relief?  
[132] I reviewed Anton Pillar orders under “The Law” and under the question “Is Emission Rx  
Engaged in a Pattern of Inadequate Production and Delay?”, above. Given the importance of these  
issues in the context of this Application, I turn to further consider this intrusive relief.  
[133] The Respondents assert that the substance of the written submissions by Questor frame  
the request as being equivalent to an Anton Piller order (the Anton Piller Relief). The  
Respondents further assert that Anton Piller Relief is one of the most intrusive orders available to  
the Court: Tiger Calcium at paras 56-57.  
[134] The Respondents challenge the submissions by asserting that Questor did not seek the  
Anton Piller Relief in the Application. They further state that the submissions by the Applicant  
are completely unwarranted and inappropriate. The Respondents also assert that the submissions  
by Questor are misleading because they are framed in the nature of a hyperbolic false evidence”  
narrative.  
[135] The Respondents further assert that what is actually before the Court is a dispute  
concerning the scope of its production. It frames the dispute by reference to: (i) what is relevant;  
and (ii) confidentiality concerns (the “Relevancy Dispute” and “Confidentiality Dispute”,  
respectively). I turn to address those assertions below.  
1. Relevancy Dispute  
[136] The Bouchard Affidavit, and the records created during the Formative Time Period, relate  
to Emission Rx’s “RC” line of combustors. Emission Rx has more recently advertised several  
additional lines of combustors (collectively, the “New Products”).  
[137] Questor argues that its pleading implicates the New Products, and potentially any other  
line of combustors that Emission Rx may create in the future. It alleges that the Third Amended  
Statement of Claim is drafted broadly, and that it captures all such products.  
Page: 18  
[138] In contrast, Emission Rx argues that the scope of relevancy in an action is confined by  
the pleadings. It reads the Third Amended Statement of Claim as being much narrower than what  
is advanced by Questor. In particular, Emission Rx asserts that the Third Amended Statement of  
Claim does not plead any property in the New Products as those or other products are developed  
from time to time. Based on its construction of the pleadings, Emission Rx admits that it has not  
produced any records in respect of the New Product, and it asserts that it has no obligation to do  
so.  
[139] The Court of Appeal has emphasised “time and time again…that pleadings do matter, and  
a judgment based on an issue not pleaded is improper”: Paniccia Estate v Toal, 2012 ABCA 397  
at para 32. This Court has also effectively stated that pleadings do matter: see NWest Energy at  
paras 19 and 40.  
[140] Emission Rx understands that Questor bases its assertion that records concerning any and  
all Emission Rx combustors are relevant to this Action. I understand that Questor bases that  
assertion on paragraph 41 of the Third Amended Statement of Claim. This paragraph states:  
41. The Competing LP Technology used, sold, shared, disclosed, distributed, and  
licensed by the Defendants was developed by Messrs. Nelson and Bouchard while  
they were employees of Questor, and as such, the Competing LP Technology and  
the proceeds therefrom belong to Questor.1  
[141] The Respondents assert that interpreting this paragraph is made difficult by the fact that  
the phrase “Competing LP Technology” is not defined in the Third Amended Statement of  
Claim. It is, however, used elsewhere in the pleading. For example, paragraph 36(e) of the Third  
Amended Statement of Claim states that, while still employed by Questor, the Respondents  
“designed and built a prototype of the Competing LP Technology informed by the Expired  
Patent”. This is an apparent reference to the Prototype, as defined herein, which found its  
ultimate expression as the RC-28 and the other size options of the RC line.  
[142] A pleading must also rest on some evidentiary basis: Paraniuk v Pierce, 2018 ABQB  
1015 at para 16; Caterpillar Tractor Co v Babcock Allatt Ltd, 1982 CarswellNat 96, [1983] 1  
FC 487 (FC) at para 15, aff’d 1983 CarswellNat 824, ACF No 528 (FCA). As I understand its  
argument, the Respondents are asserting that Questor has not provided an evidentiary basis for  
its pleadings.  
[143] Questor brought the first injunction application against the Respondents on March 19,  
2019. The first injunction application was supported by an Affidavit sworn by Mr. John  
Sutherland, filed March 19, 2019 (the “Sutherland Affidavit”). The Sutherland Affidavit is  
alleged to support Questor’s claim that the Emission Rx products are a replication of Questor’s  
products. This evidence is comprised of an Emission Rx brochure advertising its RC-24, RC-36,  
and RC-48 combustor models, and screenshots of Emission Rx’s website. The website also  
advertises the RC-24, RC-36, and RC-48 combustor models, with various sizing alternatives.  
[144] Mr. Sutherland admitted in cross-examination, that: (i) he had not examined Emission  
Rx’s existing technology; (ii) he had not had anyone at Questor examine Emission Rx’s existing  
technology; (iii) he had no actual knowledge of Emission Rx’s technology; and (iv) the evidence  
1 Underlining in the original was deleted. That underlining only depicted the amendments made to the pleadings.  
Page: 19  
given in his affidavit in respect of the alleged similarity between the Emission Rx’s technology  
and Questor’s was based on his review of a picture posted on LinkedIn.  
[145] In my decision concerning the first injunction application, I found Questor’s allegations  
were “speculative”: see Questor at paras 35, 36, and 86.  
[146] The second injunction application was supported by an affidavit of Ms. Mascarenhas  
sworn in July 2020. She stated that Emission Rx had begun advertising the New Products, and  
that she was “struck by the similarities to Questors units, for example, the air intakes and  
nozzles look quite similar.”  
[147] Ms. Mascarenhas stated that the “C” series in particular was similar to a Questor unit  
because it was a “low pressure, low volume” combustor that rested on four legs. She attached the  
materials she reviewed to draw these conclusions. Specifically, Ms. Mascarenhas attached a  
series of 2-inch-wide pictures of the “C” and “E” series combustors (and no pictures at all of  
“EF” series combustors), and a grainy video clip. The Respondents assert that this is not even  
speculative evidence, it was purely conjecture.  
[148] The Respondents go further to assert that there is no reasonable basis for this conjecture.  
They assert that it certainly cannot arise from the images to which Ms. Mascarenhas refers. The  
Respondents support their assertion by emphasizing certain particulars. First, no “nozzles” are  
visible in any of the images. Second, certain of the images show Emission Rx combustors fitted  
with “flash arrested” intakes. These would indeed be similar to those used by Questor and any  
other company who makes combustors because they are mandated by regulation. Third, it is not  
unusual, special, or proprietary to mount a combustor on legs. Other combustor manufacturers do  
so besides Emission Rx.  
[149] Ms. Mascarenhas agreed in cross-examination that: (i) she had never examined any  
Emission Rx combustor; (ii) she had never examined an Emission Rx “C”, “E”, or “EF” series  
combustor; and (iii) no one from Questor had ever examined an Emission Rx “C”, “E”, or “EF”  
series combustor. In an effort to drive the point home, the Respondents emphasized that Ms.  
Mascarenhas’ bald assertion that she was “struck” by the similarity between the “C”, “E”, and  
“EF” combustors advertised by Emission Rx and Questor’s combustors is not evidence.  
[150] As this Court has explained in an analogy, if an action is a pond, “[t]he size of the pond is  
determined by the pleadings”: NWest Energy at para 40. There must be boundaries to the scope  
of relevancy, both in terms of subject matter and time. A similar point has been recognized by  
the Ontario Superior Court of Justice in Quizno’s.  
It is just and procedurally fair that there be a temporal dividing line to define the  
cutoff for relevant evidence. If there were no temporal benchmark, then a plaintiff  
could sue without a cause of action in anticipation of perfecting or discovering  
one. …This has the aura of fishing for a cause of action: Quizno’s at para 125.  
[151] Similarly, in the present Action, the Respondents assert that the Court should not allow  
Questor to extend the scope of relevancy indefinitely, at least not without evidence. The  
Respondents assert that Questor’s current position (i.e., that all Emission Rx combustors should  
presumptively belong to it, unless the Respondents prove otherwise) has “the aura of fishing for  
a cause of action”: Quizno’s at para 125.  
[152] Concerning the relevancy dispute, I do not agree with many of the assertions for the  
Respondents. In their attempt to shield the New Products from disclosure, the Respondents  
Page: 20  
advance a narrow and tortured interpretation of the Third Amended Statement of Claim in an  
attempt to suggest that the pleadings are focussed on the combustor prototype and nothing  
broader. In my view, there is no basis for reading that kind of limitation into the pleadings.  
[153] As I read the Third Amended Statement of Claim, it is broad enough to capture the New  
Products. While I agree that the size of the pond is determined by the pleadings, I construe the  
pleading as defining a larger pond in this case than the Respondents suggest. In making these  
comments, I acknowledge the use of the phrase “Competing LP Technology” in certain  
paragraphs of Third Amended Statement of Claim and the assertion that the phrase is not  
defined. While it is not without issue, I infer that phrase is simply a misstatement of the phrase  
“Competing LP Burner Technology”, which is defined within the Third Amended Statement of  
Claim. See clause 39 of the pleading.  
[154] With respect, at this stage of the litigation, I do not think it appropriate for the Court to  
limit the relevancy of the commencement document based on a typographical error or the  
misstatement of a defined phrase2. In making this determination concerning relevancy, I  
emphasize that Questor does not need to demonstrate conclusively that the records sought will  
provide concrete assistance; it only needs to establish a plausible line of argument that the  
records will be probative to its claim: Alexander at para 38.  
[155] I also disagree with the assertion that Ms. Mascarenhas and Mr. Sutherland have not  
provided evidence. While I might not give their evidence much weight in a final adjudication,  
their respective statements in affidavit format are sufficient at this stage of the proceedings for  
me to find that the design records created during the Developmental Time Period are relevant.  
2. Confidentiality Dispute  
[156] Emission Rx has redacted three classes of information in this Action (the “Redacted  
Information”). It asserts the Redacted Information: (i) is not relevant and material to the issues  
raised by the pleadings in the Action; (ii) is sensitive financial information; or (iii) is confidential  
and proprietary intellectual property.  
[157] The Respondents assert that if any of the Redacted Information is determined to be  
relevant and material (and therefore producible in this Action), it is imperative that the material  
be produced on a “counsel’s eyes onlybasis.  
[158] In regard to confidentiality, Emission Rx asserts that, in the ordinary course, relevant and  
materials records produced by parties to litigation are protected by the implied undertaking rule,  
including as codified in the Alberta Rules of Court: see Rule 5.33. However, in circumstances  
such as these, where the parties to the litigation are direct competitors and the subject matter  
deals with intellectual property, the Respondents assert that the implied undertaking is not an  
adequate or effective means by which to protect the proprietary interests of the litigating parties.  
[159] The concern that the implied undertaking may not be an adequate means to protect the  
proprietary interests of a litigant has been acknowledged by the Federal Court of Appeal as  
recently as 2020 when it stated:  
2 While it is not a pleading, I note for the record that the Respondents’ Brief defines phrase “Formative Time  
Period” (see paragraph 19 of the Respondents’ Brief) but then inadvertently uses the phrase “Formative Period” (see  
paragraph 40 of the Respondents’ Brief).  
Page: 21  
Protective orders undoubtedly remain pertinent and useful for intellectual  
property litigants and there is no justification, legal or otherwise, for stifling this  
long-standing practice. Not only do protective orders provide structure and  
enforceability in ways the implied undertaking, or private agreements, for that  
matter, cannot, but they are also consistent with modern, efficient, effective and  
proportional litigation...: Canadian National Railway Company v BNSF  
Railway Company, 2020 FCA 45 at para 32 [Canadian National].  
[160] Emission Rx asserts that the designs of its combustors are unique, valuable, and effective.  
The evidence is that the combustor market is “highly competitive,” with all industry participants  
vigorously competing to solve similar problems in diverse ways. Based on all the evidence  
before me, I accept that Questor is a direct competitor to Emission Rx in the combustor space.  
[161] Questor’s evidence is that, like Emission Rx, it also treats its design drawings as  
confidential and proprietary. It does not share them with third parties, unless there is a  
confidentiality agreement.  
[162] Like Questor and other holders of intellectual property, I accept that Emission Rx must  
(and does) take steps to protect its intellectual property. This includes its unique and proprietary  
designs, and other confidential information. It is especially important to keep intellectual  
property from falling into the hands of a competitor or other third parties.  
[163] The concern is that if Questor were granted unfettered access to Emission Rx’s  
proprietary information and intellectual property data, it likely would cause harm to Emission  
Rx. To do so would be to hand over extremely valuable information to, and for the benefit of,  
Questor’s own business interests.  
[164] The concern of the Respondents is that Questor would have the ability to take the  
blueprints and incorporate them into their own designs and technology, and then use them to  
compete against Emission Rx. That would provide Questor with the opportunity to incorporate  
and use the Emission Rx designs and technology against it.  
[165] From a policy perspective, it would not be appropriate to allow Questor unfettered access  
to the design records and financial data of Emission Rx. In my view, it would set an  
inappropriate precedent. If I granted such access, it would be a signal to other potential plaintiffs  
that they need only launch a broadly framed lawsuit against a competitor in order to gain access  
to valuable and proprietary records of their competitors. This would expose respondents to the  
possibility of extreme prejudice in the context of intellectual property disputes.  
[166] The Respondents assert that the redactions by Emission Rx protect an important  
commercial interest. In particular, there is a general commercial interest in preserving  
confidential information: Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41  
at para 55. However, the bar for granting an order (such as a sealing order) to protect certain  
types of information can be very high: see Sherman Estate v Donovan, 2021 SCC 25. In this  
case, the redactions made by Emission Rx protect its commercial interest in seeing that its  
intellectual property and financial information is not made available on an unrestricted basis to a  
direct competitor.  
[167] Emission Rx asserts that it has applied redactions to its financial records to protect  
confidential business information. It also asserts that such financial information is not relevant  
and material to the issues raised in the pleadings in this Action.  
Page: 22  
[168] Emission Rx asserts that its financial information is only relevant to the extent that it  
shows profits derived from relevant lines of combustors. Financial information that it does not  
consider relevant was redacted. As a result, Emission Rx redacted financial information  
pertaining to the New Products.  
[169] In addition to arguing that the redacted financial information was not relevant to the  
Action, the Respondents asserted the redacted financial information was commercially sensitive  
and confidential. In particular, the Respondents asserted that the full disclosure of financial  
information would allow Questor, a competitor, access to Emission Rx’s per-unit profit margins,  
to the relative profitability of its various lines, and what prices it was paying for material and  
services. That information would allow Questor to compete with Emission Rx in the market in a  
targeted fashion and would serve no purpose in the litigation.  
[170] Emission Rx previously produced its balance sheet and income statements for 2019 and  
2020 records in the course of the first and second injunction application on a counsel’s eyes only  
basis, and with redactions. Those redactions allowed counsel access to: “total assets”, “total  
liability”, “total equity”, “liabilities and equity”, “total revenue”, “Combustor Sales-RC Series”,  
“total expense”, and “net income”.  
[171] In an affidavit sworn by Ms. Mascarenhas in June 2021, Questor proposed that the  
Redacted Information be produced to Questor on a “counsel’s eyes only” basis. However, in an  
affidavit sworn on May 31, 2021, Ms. Mascarenhas indicated that this disclosure also would be  
made available to two Questor employees. On cross-examination, Ms. Mascarenhas confirmed  
that these employees would be involved in combustor design.  
[172] The Respondents assert that it is not reasonable to compel Emission Rx to grant access to  
its proprietary and confidential records to a Questor employee. To do so would defeat the  
objective of a “counsel’s eyes onlyorder and put Emission Rx at serious risk of harm.  
[173] The purpose of a “counsel’s eyes only” order is “to prevent the disclosure of highly  
sensitive and confidential information to officers, executives, employees or anyone else involved  
in day-to-day operations” at the risk of their consciously or unconsciously using such  
information to the competitive disadvantage of the disclosing party: Angelcare Development Inc  
v Munchkin, Inc, 2018 FC 447 at para 20 [Angelcare]. Such orders prevent counsel from  
showing their clients sensitive information: Angelcare at para 21.  
[174] As I understand their position, the Respondent’s accept that a “counsel’s eyes only” order  
may be structured to permit independent qualified experts when designated. However, they assert  
that concession should not extend to employees of Questor. (For purposes of this Application, I  
define this as a “Counsel’s Eyes Only Order”, being the aggregate of the Applicant’s Counsel  
and independent qualified experts for the Applicant who sign appropriate confidentiality  
agreements.) I address the tests for this type of protective order below.  
[175] Concerning the confidentially dispute, I agree with the Respondents that granting  
unfettered disclosure of Emission Rx’s design records and financial records to any Questor  
employee creates significant risk that aspects of Emission Rx’s designs could be incorporated  
into the designs of Questor. I say that because Questor is a direct competitor of Emission Rx in  
the highly competitive combustor industry. Such unfettered disclosure could cause serious and  
irreparable harm to Emission Rx and its business interests, and could threaten its ongoing  
viability. In my view, unfettered disclosure of Emission Rx’s design records and data should not  
Page: 23  
be permitted without careful consideration of the implications for Emission Rx. My additional  
reason for this determination is that allegations levied by Questor are not yet proven. Given the  
sensitivities, it is prudent to take one set at a time, rather than jumping off a cliff. Further, there  
are appropriate protective steps which can be taken at this juncture without seriously  
jeopardizing the rights of the Applicant to advance its case.  
H. Other Matters  
1. Patent Agent Files - Privilege Issues  
[176] As I commented above, patent agent privilege is a new concept in Canada. The scope of  
the privilege is yet to be determined.  
[177] One of the principles that I outlined above was that if there is a claim for patent agent  
privilege, the court could review the disputed records to determine whether privilege has been  
properly asserted. This approach is an appropriate step in this Application because of the nature  
of the dispute. In particular, concerning the records over which privilege is claimed by the  
Respondents, the court can be called upon to determine whether the subject communication was  
made for the purpose of seeking or giving advice with respect to any matter relating to the  
protection of the invention: section 16.1(c) of the Patent Act; Janssen at para 14. As I noted  
above, this is one of the prerequisites to establish patent agent privilege.  
[178] In keeping with my above comments, I direct that the records in the patent agent files be  
reviewed and listed as follows:  
a. where privilege is not claimed, those records are to be produced in an appropriate  
affidavit of records; and  
b. where privilege is claimed, an affidavit of records is to be filed asserting that  
claim. There will be a right to cross-examine on that affidavit. The Court should  
then be engaged to review the records. Upon that review, the Court will determine  
what records, if any, are to be shielded from production.  
[179] The Court acknowledges that it has had the benefit of some argument on this area of the  
law. Unless the parties think it necessary to provide further argument, the Court will consider the  
past submissions in its determination of what records, if any, are to be shielded from production  
on the basis of patent agent privilege.  
2. Strike Application Outstanding Costs Matter  
[180] The Respondents have an outstanding costs application concerning the strike application:  
see Strike Reasons. Questor has acknowledged that fact, and advised me during this hearing that  
it still has not provided submissions on that matter.  
[181] While this matter was touched on during the hearing, I will not address it in this decision.  
I will address it after Questor makes submissions, and the matter is scheduled.  
3. August 2022 Submissions  
[182] I acknowledge the submissions from Counsel on both sides of this Application dated  
August 2, 2022, August 5, 2022 and August 8, 2022. While I did read each of the submissions, I  
decided not consider them in this decision because of the Respondents objections to Questor’s  
submissions in the first instance. As a result, I make no further comment.  
Page: 24  
VI. Conclusions  
A. Overview  
[183] In my quest to answer the questions posed above, I acknowledge that the key issue  
underlying this Application is whether Emission LP burner technology was created during the  
time that the individual Respondents were employees of Questor.  
1. Questions Answered  
[184] I summarize my determinations by reference to the questions I framed above under II.  
Issues Questions Posed.  
a. Is there a sufficient evidentiary basis that relevant and material  
records exist which have not been disclosed and must be  
produced?  
[185] Based on the facts and analysis above, I determined that there is a sufficient evidentiary  
basis that relevant and material records exist which: (i) have not been disclosed; and (ii) must be  
produced. Given that determination, I direct that Emission Rx produce a further and better affidavit  
of records. This determination is subject to my further comments below.  
b. Is Emission Rx engaged in a line of conduct meant to deprive  
Questor of relevant and material records warranting a  
comprehensive production order?  
[186] Based on the facts and analysis above, I determined that the Respondents are being cautious  
in respect of their disclosure. While they may be accused of being overly cautious, I am of the  
view that their conduct does not warrant a comprehensive production order in the nature that it has  
requested in the Application. My rationale for this decision at this juncture is that the allegations  
levied by Questor are not yet proven. As a result, it is prudent to take a cautious approach at this  
stage of the litigation.  
c. Is Emission Rx is compelled to produce native records, including  
metadata?  
[187] Based on the facts and analysis above, I determined that Emission Rx must produce the  
native records and metadata, including the records produced throughout the Developmental Time  
Period. This determination is subject to my further comments below.  
d. Is Emission Rx is entitled to provide significant redactions to  
produced records?  
[188] Based on the facts and analysis above, I determined that Emission Rx must produce the  
relevant and material documents without redaction. This determination is subject to a qualification  
for privileged documents. It is also subject to my further comments below. But for those  
limitations, I direct that Emission Rx produce all relevant and material records in unredacted  
format, including the financial records.  
e. Is a “counsel’s eyes onlyapproach an appropriate mechanism to  
address the confidentiality concerns of Emission Rx?  
[189] Based on the facts and analysis above (and the tests for this type of protective order,  
which I address below), Emission Rx is entitled to a protective order in the nature of a Counsel’s  
Page: 25  
Eyes Only Order because that is an appropriate mechanism to address the confidentiality  
concerns of Emission Rx. I make this determination because granting unfettered disclosure of  
Emission Rx’s design records and financial data to Questor at this stage creates significant  
business risk to Emission Rx.  
2. The Test – Counsel’s Eyes Only Order  
[190] Protective orders in the nature of a Counsel’s Eyes Only Order are typically used in  
intellectual property disputes to protect information exchanged during the discovery process. In  
contrast to confidentiality orders, protective orders do not circumvent the open court principle:  
Canadian National at paras 24 - 25. As a result, the test for achieving a protective order is  
relatively less onerous: Canadian National at para 25.  
[191] The general test for granting a protective order requires the Court to be satisfied that:  
[…] “the moving party believes that its proprietary, commercial and scientific  
interests would be seriously harmed by producing information upon which those  
interests are based” […] it “has been treated by the party at all relevant times as  
confidential”, and […] “on a balance of probabilities, [the disclosing party’s]  
proprietary, commercial and scientific interests could reasonably be harmed by  
the disclosure of information: Canadian National at para 14.  
[192] The Federal Court of Appeal in Arkipelago Architecture Inc v Enghouse Systems  
Limited, 2018 FCA 192 [Arkipelago] held that counsel’s eyes only orders are appropriate in  
unusual circumstances, and that whether circumstances are unusual is determined on a case-by-  
case basis: Arkipelago at para 11. The Federal Court also held that:  
[...] a [counsel’s eyes only] order is warranted where the disclosure of the  
confidential information at issue presents a “serious threat” that is “real,  
substantial, and grounded in the evidence”…: Arkipelago at para 11.  
[193] In Depura Partners LLC's v Desjardins General Insurance Inc, 2020 FC 261 [Depura]  
the Federal Court reiterated that:  
[…] preventing disclosure to the opposing party has been held to be a perfectly  
legitimate purpose of a Protective Order in disputes involving direct competitors,  
especially in the area of intellectual property…: Depura at para 10.  
[194] The Court in Depura also noted that the risk of harm can materialize deliberately or  
negligently, either through the receiving party's contravention of the implied undertaking rule, or  
in circumstances where an employee or officer of the receiving party is influenced by their  
knowledge of the confidential information in making business decisions, in a manner prejudicial  
to the disclosing party: Depura at para 11.  
[195] Similarly, in Angelcare the Federal Court described the purpose of a counsel’s eyes only  
order as being used:  
[…] to prevent the disclosure of highly sensitive and confidential information to  
officers, executives, employees or anyone else involved in the receiving party’s  
day-to-day operations from consciously or unconsciously grounding their  
business decisions on the confidential information to the competitive  
disadvantage of the producing party...: Angelcare at para 20.  
Page: 26  
[196] In my view, Emission Rx meets the test for a protective order because:  
a) its interests could be seriously harmed by producing its proprietary intellectual  
property, confidential information, and trade secrets, in the form of unredacted  
copies of the design records and financial records, to their direct competitor,  
Questor;  
b) at all relevant times, Emission Rx has treated the design records and financial  
records as confidential; and  
c) on a balance of probabilities, Emission Rx’s proprietary, commercial, and  
scientific interests could reasonably be harmed by disclosure of the design records  
and the financial records to its direct competitor, Questor, due to their  
subconscious, inadvertent, or other misuse of these records to the competitive  
advantage of Questor and to the prejudice and disadvantage of Emission Rx.  
[197] Based on the facts and analysis, Emission Rx is entitled to a protective mechanism in the  
nature of a Counsel’s Eyes Only Order because:  
a) the unique, valuable, and effective nature of the designs, coupled with the highly  
competitive combustor market and the relationship between Emission Rx and  
Questor as direct competitors in this market, renders Emission Rx particularly  
vulnerable to having its proprietary, commercial, and scientific interests seriously  
harmed if unfettered disclosure of the design records and the financial records is  
allowed; and  
b) preventing disclosure to a direct competitor in an intellectual property setting is a  
legitimate reason to grant such an order.  
[198] I make this determination because allowing Questor to have access to unredacted  
versions of the design records and financial records would create a real and substantial risk of  
subconscious, inadvertent, or other misuse by Questor of the information contained in those  
records. Given the risks, it is prudent to take protective steps at this juncture.  
3. The Directed Approach  
[199] In view of the above determination, I direct that Questor be granted access to relevant un-  
redacted records on a “counsel’s eyes only” basis (the “CEO Approach”). This approach  
addresses the Confidentially Disputereviewed above in a manner that protects the integrity of  
the Emissions Rx business pursuit until the Action is concluded. To properly effect this result, I  
further direct that the CEO Approach shall be structured as follows:  
a) Any and all records in the possession of Emission Rx that contain design or  
manufacturing information with respect to the combustors designed or built by  
Emission Rx that are determined to be producible (the “Design Records”), and  
any and all financial records in the possession of the Respondents that contain  
commercially-sensitive information that are determined to be producible  
(collectively, the “Financial Records”), shall be produced for discovery on a  
counsel’s eyes only” basis.  
b) “Counsel’s eyes only” shall extend only to legal counsel for the Plaintiff and the  
Plaintiff’s retained independent expert(s) (collectively, the “Permitted Persons”),  
Page: 27  
and, without limiting the specificity of the foregoing but for greater clarity, shall  
not extend to any employee, director, officer, contractor, or consultant of the  
Plaintiff. Further, before there is such disclosure to an independent qualified  
expert for the Plaintiff, each such individual must have executed an appropriate  
confidentiality agreement.  
c) The Permitted Persons may review unredacted copies of the Design Records and  
the Financial Records for the sole purpose of participating in questioning of the  
Respondents and otherwise developing the Plaintiff’s case, including preparing an  
expert report(s) (the “Permitted Purposes”).  
d) The Permitted Persons shall give a written undertaking to Emission Rx that those  
persons will not disclose the Financial Records or Design Records or make use of  
those for any reason except in carrying out the Permitted Purposes.  
e) To the extent counsel for Questor refers to otherwise-redacted portions of the  
Design Records and Financial Records in Questioning the Respondents, any  
representative of Questor observing that Questioning shall be excluded until such  
time as time as those questions referring to otherwise-redacted portions of the  
Design Records and Financial Records have been asked and answered. This  
exclusion shall not apply to Plaintiff’s counsel or to an independent qualified  
expert for the Plaintiff who has executed an appropriate confidentiality  
agreement.  
f) Any portions of transcripts of Questioning of the Respondents that address  
otherwise-redacted portions of the Design Records and Financial Records, or the  
Sample Combustors, will likewise be treated on a “counsel’s eyes only” basis,  
such that only those individuals identified in paragraph (b) hereto shall have  
access to those transcript portions.  
g) Should Questor wish to make use of the Design Records, Financial Records, or  
opinion or transcript evidence referring to unredacted Design Records or  
Financial Records as evidence at trial or at an application, Questor must provide  
the Respondents’ with ten days notice of their intent to do so, such that the  
Respondents may bring an application for further confidentiality protections,  
including an order that the file be sealed, or for a restricted court access order.  
Should the Respondents file and serve such an application, Questor will not file or  
tender as evidence the relevant evidence until such time as any application  
brought by the Respondents is heard and adjudged by the Court.  
h) Resolution of this Action shall not relieve any person referred to in paragraph (b)  
from their obligation to maintain the confidentiality of the Financial Records and  
Design Records.  
i) Upon final resolution of this Action (inclusive of any appeals), Questor’s counsel  
shall assemble and return to counsel for the Respondents within 90 days all  
Financial Records and Design Records, including all copies of such items, except  
copies containing notes made by or for counsel.  
(collectively, the “CEO Order”)  
Page: 28  
[200] As a concluding comment under this component of the decision, the CEO Approach is  
intended to provide protection to Emission Rx’s proprietary and competitive interests, while  
simultaneously ensuring the Applicant suffers no prejudice in assessing and prosecuting its case.  
The additional information obtained by Counsel for the Applicants and their experts can be used  
to formulate appropriate questions. Whatever operational steps are taken during the review  
process, I further direct that the disclosure sought by Questor be tempered and balanced with the  
right of Emission Rx to protect its proprietary and competitive interests.  
B. CEO Order The Scope  
[201] Given the above facts and analysis, I that direct the CEO Approach be applied to the  
following items within 60 days from the date of the CEO Order.  
a) Unredacted sketches, designs, design information, technical drawings,  
engineering drawings, production drawings, and as-built drawings in all file  
formats they in which they exist, including in CAD or similar design software,  
related to the following:  
i.  
The combustors that Emission Rx sells, directly and  
indirectly, namely the RC-24, RC-36, RC-48, C 12-12, C  
12-22, C 24-16, C 24-26, C 36-18, C 36-28, EF 24-14, EF  
24-24, EF 36-14, EF 36-24, EF 36-24, EF 48-24, E24-10,  
E36-12, E48-12, E72-12, E96-12, E120-18, and any other  
combustors Emission Rx sells, directly and indirectly, that  
incorporate the Emission Rx Patent;  
ii.  
The development of the expired patent prototype including  
the evolution of, and modifications to, the design over time  
from the expired patent prototype to the Emission Rx line  
of combustors, up to September 2018;  
iii. Correspondence, including emails, related to the  
development and modification of the expired patent  
prototype up to September 2018; and  
iv.  
Except for the records in the patent agent file that the court  
determines are privileged through the process referred to  
above, the material provided to the patent agent that shows  
or describes, or both, the technology the Respondents  
sought to patent in their patent applications.  
b) Unredacted email correspondence sent among or by the Respondents referencing,  
attaching, or linking to all the above items (a) responsive records, excluding any  
matters that are clearly irrelevant as they are of a personal nature, which may be  
redacted.  
c) The operating manuals for the RC-24, RC-36, RC-48, C 12-12, C 12-22, C 24-16,  
C 24-26, C 36-18, C 36-28, EF 24-14, EF 24-24, EF 36-14, EF 36-24, EF 36-24,  
EF 48-24, E24-10, E36-12, E48-12, E72-12, E96-12, E120-18, and for any other  
combustors Emission Rx sells and that incorporate the Emission Rx Patent.  
Page: 29  
d) The detailed accounting of profit to Emission Rx in connection with its low-  
pressure technology.  
e) The list of customers to whom combustors have been sold by Emission Rx, in  
Canada or the United States, or by EnviroVault under its distributor arrangement  
with Emission Rx.  
f) Updated Emission Rx Financial Records, unredacted and on a counsel’s eyes only  
basis as previously ordered by this Court, to be provided each quarter until this  
Action is complete.  
g) A re-issued set of the records listed in the RespondentsAffidavit of Records  
sworn July 19, 2019, and as amended and sworn February 4, 2020, so that all  
records are provided in native form, including in CAD compatible form where  
that is their native form, ingestible into standard records reviewing software,  
along with the associated standard metadata, such as document date, author, and  
file type, and without scans of printed records that exist originally in digital form.  
[202] Concerning item “g” of the CEO Order noted above, I acknowledge the technical  
arguments advanced by the Respondents concerning the image records and native records in  
their original format. While I understand that redactions can only be applied to imaged versions  
of records, I will not address that matter because the Respondents stated in argument that they  
did not have any objection to producing the native records.  
[203] Concerning the sample combustors, Questor sought the production, for inspection  
purposes, of one representative sample of an Emission Rx RC-series combustor, C-series  
combustor, EF-series combustor, and E-series combustor, as well as one representative sample of  
an RC-series combustor, C-series combustor, EF-series combustor, and E-series combustor mid-  
fabrication so that all the key internal elements can be evaluated. In the context of this  
Application, I will not grant Questor an order allowing it to inspect this property. I make this  
determination because the inspection or examination of property of this sort was not properly  
plead. Concerning this matter, I agree with the Respondents that a physical combustor is not a  
record. Instead, it is personal property and there are separate rules to deal with such items. It  
would be an error of law for me to issue an order for something not properly plead. I am  
particularly cautious about exercising my discretion in a case such as this where all issues are  
hotly contested. If an application is filed under Rule 6.26, then the Court would be compelled to  
consider the request. Amongst other issues, the Court also would have to consider access to the  
relevant real property where the subject sample combustors are believed to be situated: Rule 6.26  
(c).  
[204] Concerning undertakings, Questor sought updated answers to Undertakings on the  
Affidavit of Jeffrey Nelson sworn May 21, 2019, held on May 23 and May 28, 2019, and filed  
July 4, 2019, to the extent that any of the provided answers are no longer accurate, in whole or in  
part, as filed, and in particular, in relation to the undertakings regarding Aerotech Group of  
Companies or Dave Meyer. In the context of this Application, I will not grant Questor an order  
directing the Respondents to update an undertaking. I make this determination because this  
request by Questor does not involve a record. Further, based on my understanding of the law,  
there is no obligation on the Respondents to update a cross-examination to an undertaking  
Page: 30  
response after the cross-examination is at an end. Instead, this is a matter that can be addressed  
by Questor at questioning, at which time the question could be posed by the Applicant.  
[205] In addition to the above, I direct that:  
a) Emission Rx permit Questors experts (likely Dr. Mehta) access to Emission Rxs  
OnShape license for a period of 72 hours so that they may review Emission Rxs  
design records, including the ability to revert any records, and to produce two and  
three-dimensional drawings as reasonably necessary for Questor to advance its  
claim; and  
b) Emission Rx permit access to the Respondents personal email accounts on a  
counsel’s eyes only basis to review records dated between March 2018 and  
September 2018 for any correspondence related to the development of Emission  
Rxs designs.  
VII. Costs  
[206] The parties may speak to costs if they cannot otherwise agree.  
Heard on the 29th day of October 2021, 13th day of January 2022, and submissions on August 2,  
2022, August 5, 2022, and August 8, 2022.  
Dated at the City of Calgary, Alberta this 8th day of September 2022.  
D.B. Nixon  
J.C.Q.B.A.  
Appearances:  
Michael P. Theroux, Denise Brunsdon, and  
Paul Romaniuk of Bennett Jones LLP  
for the Applicant/Plaintiff  
Frank Tosto, Loni da Costa, Matthew Schneider, and Erik Juergens  
for the Respondents/Defendants  

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WCAT Decision A2001487 | Aug 8, 2022
City of Hamilton v Ontario Water Employees’ Association | Sep 12, 2022
Century Services Corp. v. LeRoy | Jul 8, 2022
United Food and Commercial Workers, Local 175 v Metro Ontario Inc. | Jul 4, 2022
Langmaid’s Island Corporation v Lake of Bays | Sep 12, 2022
WCAT Decision A2102416 | Jul 22, 2022
Inquiry about McAbee Fossil beds | Jul 14, 2022
1088558 Ontario Inc. v. Musial | Sep 16, 2022
Biogen Canada Inc. v. Pharmascience Inc. | Aug 8, 2022
CIC Management Services Inc. v City of Toronto | Jul 21, 2022
Bonterra Energy Corp v Rosells’ Enterprises Ltd | Aug 31, 2022
WCAT Decision A2100606 | Aug 17, 2022
Leffler v Aaron Behiel Legal Professional Corporation | Jun 30, 2022
Espartel Investments v. MTCC No. 993 | Aug 19, 2022
Onespace Unlimited Inc. v. Plus Development Group Corp. | Sep 19, 2022
Professional Institute of the Public Service of Canada v. Canada Revenue Agency | Jun 23, 2022
Community Savings Credit Union v. Bodnar | Jul 29, 2022
Galperti SRL v F.I.A.L. Finanziaria Industrie Alto Lario S.P.A | Jun 30, 2022
WCAT Decision A2102352 | Jul 6, 2022
WCAT Decision A2102306 | Jul 25, 2022
Thrive Capital Management Ltd. v. Noble 1324 Queen Inc. | Jul 12, 2022
Questor Technology Inc v Stagg | Sep 8, 2022
MediPharm v. Hexo and Hwang | Jul 25, 2022
Immunization rates & vaccine hesitancy | Aug 17, 2022
Morabito v. British Columbia Securities Commission | Aug 12, 2022
Killeleagh v Mountain View County (Development Authority) | Aug 24, 2022
Quality Control Council v Stanley Inspection Canada Ltd. | Sep 9, 2022
British Columbia Investment Management Corporation | Aug 17, 2022
Abbeylawn Manor Living Inc. v Sevice Employees International Union, Local 1 Canada | Jul 5, 2022
Windrift Adventures Inc. et al. v. Chief Animal Welfare Inspector | Aug 18, 2022
Irani and Khan v. Registrar, Motor Vehicle Dealers Act | Jul 14, 2022
CP REIT Ontario Properties Limited v City of Toronto | Aug 12, 2022
Potash Corporation of Saskatchewan Inc. v. The Queen | Jul 7, 2022
Wong v. Pretium Resources Inc. | Jul 22, 2022
Labourers' International Union of North America, Local 183, Union v Mulmer Services Ltd. | Aug 5, 2022
City of Mississauga v. Hung | Sep 22, 2022
Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (28 September 2022)
Orewa Community Church v Minister for Covid-19 Response (16 August 2022)
Yeshiva College Bondi Limited v NSW Education Standards Authority (15 August 2022)
Moreland Planning Scheme Amendment C208more | Heritage Nominations Study | Panel Report | 15 July 2022
New Zealand Tegel Growers Association Incorporated | 2 August 2022
Farrow-Smith and Comcare (Compensation) | 26 September 2022
Evolution Fleet Services Pty Ltd v Allroads Plant Pty Ltd | 14 September 2022
656621 B.C. Ltd. v David Moerman Painting Ltd. | Sep 27, 2022
Fraser Valley Packers Inc. v Raiwal Holdings Ltd | Sep 26, 2022
Parmar v Tribe Management Inc. | Sep 26, 2022
DES Studio inc. c. Shuchat | Sep 26, 2022
Van-Kam Freightways Ltd. v Teamsters Local Union No. 31 | Sep 28, 2022
Rogers Communication Inc. v British Columbia | Sep 28, 2022
Alderbridge Way GP Ltd. | Sep 28, 2022

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