Executive Summary: Key Legal and Evidentiary Issues

• The plaintiffs sought to admit historical technical and business documents for the truth of their contents under the principled exception to the hearsay rule.
   
• Necessity was established through the deaths of two key witnesses, the unavailability of an elderly former TRG vice president, and Mr. Ohno's inability to recall the events in question.
   
• Threshold reliability rested on the documents' contemporaneous creation in the ordinary course of business, mutual corroboration, supporting affidavits, and the absence of any demonstrated motive to lie.
   
• Letters dating from 1996 to 1998 were admitted under s 42 of the Evidence Act, with the court rejecting the defendant's narrow view of who must have a duty to record.
   
• Late-delivered particulars were accepted under Rule 3-7(2) of the Supreme Court Civil Rules as refining, rather than adding to, the pleadings.
   
• Actual prejudice, which the defendant bore the onus of proving, was not shown.

Facts of the case

International Thermal Investments Ltd. and International Thermal Research Ltd. (ITR) sued Dometic Marine Canada Inc., doing business as Seastar Solutions, in the Supreme Court of British Columbia. The action arises from a manufacturing relationship of more than 25 years that broke down in 2019, and the plaintiffs allege breach of contract and breach of confidence. According to the plaintiffs, the defendant kept selling MBU burners and related parts after January 17, 2018, and royalties are owed on those sales. They also say the defendant's unilateral 2019 termination of the licence agreement, retroactive in effect, is not effective, and that the defendant's ongoing use of technical information embodied in the MBU burners amounts to a breach of confidence.

The defendant's position is that the contractual obligations ended when the patents expired by July 14, 2015. Alternatively, it says they ended when the sale agreement expired on August 28, 2015, or, in the further alternative, when the licence agreement's term ended on December 31, 2016. It acknowledges that ITR delivered some design information to Teleflex, but says this happened before March 7, 1997, and that no qualifying technical information was embodied in MBU parts sold since January 2018.

At the parties' request, the court delivered oral reasons on September 11, 2026, ahead of final argument, following a hearing on September 4 and 8, 2026. The plaintiffs' document application had narrowed during trial because many documents were entered as exhibits through witnesses. Still in dispute were documents from Tech Research Group Inc. (TRG), Mr. Ohno's handwritten notes of a 2019 phone call with Mr. Curliss, and a set of licence agreement letters. The plaintiffs said emails between Mr. Ohno and Mr. Curliss were relevant to what the decision describes as the plaintiffs' estoppel by convention defence and the plaintiffs' counterclaim. Those emails concerned royalty cheques, the prospective renewal of the licence agreement, and ongoing royalty payments, and the plaintiffs said they had been authenticated through Mr. Curliss' testimony.

According to the plaintiffs, the TRG documents show development work that Mr. Robinson of the plaintiffs carried out on the PMB burner between 1994 and 1997, before the 1997 licence agreement with the defendant. They also say the documents bear on what technical information was transmitted to the defendant and eventually embodied in the MBU burner, which partly grounds the breach of confidence claim. Mr. Robinson kept the records in his ITR role. They include the TRG subcontract, his correspondence with Mr. Bertsch and Mr. Codega of TRG, enclosures to correspondence with US Army representatives, and copies of US Army test results for the PMB burners.

Both Mr. Robinson and his ITR counterpart and co-inventor, Leonard Fleming, have died. Mr. Bertsch, now 88, lives in an assisted living facility in Norwood, Massachusetts, has a health condition affecting his memory, and cannot travel by plane. He nevertheless provided an affidavit confirming that he was TRG's vice president. In it, he also recognized TRG's letterhead and logo, his own signature, handwriting, and email address, and his relationship with Mr. Robinson. The plaintiffs say they made extensive efforts to contact Michael Codega, Joe Mackoul, and Glenn Doucet, without success.

A separate application came from the defendant. It asked the court to find that some evidence fell outside the pleadings. That evidence concerned technical features of either party's burners that were not particularized in the amended reply to the demand for further particulars dated May 16, 2024, including the configuration and sizing of burner holes. Alternatively, it asked the court to deny leave for particulars delivered on August 12, 2026 or August 25, 2026.

Policy and legislative provisions at issue

The decision does not quote the wording of the licence agreement. The defendant relies on s 22(a), which it says gives it permission to use Technical Information that has since fallen into the public domain. It also argues that individual MBU parts it sold did not or do not embody ITR's technical information.

The court summarized s 42 of the Evidence Act, RSBC 1996, c 124. Under that provision, a statement of fact in a document is admissible as evidence of that fact if three conditions are met:

• the document was made contemporaneously by someone with personal knowledge of the matters recorded;
• it was made by someone with a duty to record or communicate it; and
• the matters are of the kind ordinarily recorded in the course of that business.

Rule 3-7(2) of the Supreme Court Civil Rules allows a party to provide further particulars as they become known.

Reasoning and analysis

On necessity, the decision cites R v Bradshaw, 2017 SCC 35, under which the criterion must be interpreted as "reasonably necessary." Proof that a witness has refused to testify is sufficient, and a declarant's death is almost always conclusive. The court found necessity met for each category of documents. It pointed to Mr. Ohno's inability to recall the events, his unwillingness to testify, and the fact that he is seeking medical assistance for potential cognitive issues. Two critical witnesses, Ed Robinson and Len Fleming, are deceased. Mr. Bertsch's age, residence, and health condition affect his memory and his ability to travel. The court was also satisfied that the plaintiffs made sufficient efforts to locate the other named individuals.

At the admissibility stage, a judge must consider only whether hearsay meets threshold reliability. That standard requires the hearsay to be reliable enough to overcome the dangers of not being able to test it, as set out in R v Wilder, 2002 BCSC 133, at para 181.

Mr. Ohno's notes met that threshold. He attested that he recognizes his ITR email address and his own handwriting in the notes of the 2019 call, and the statements were recorded in the ordinary course of business. His affidavit also confirms that he recalls Brian Curliss, was in contact with him from time to time, and believes he wrote the notes in relation to the call.

The technical documents also met the threshold. They consist of technical correspondence, status reports, design documents, and other records, created contemporaneously in the ordinary course of an active contractual and business relationship between ITR and TRG. The documents corroborate one another and were authored by people with personal knowledge, including Ed Robinson and Mr. Bertsch, and no motive to lie was demonstrated or even alluded to. The defendant argued there is no basis to say the contents are true, but the court held that weight and effect can still be raised in final argument.

The licence agreement letters include letters on Teleflex letterhead from 1996, 1997, and 1998. They also include a February 1996 letter to Ed Robinson from Karcher and a December 1997 letter from Hunter Manufacturing Company concerning the manufacture of the multi-fuel burner test and production contract. In the court's view, there was no doubt these documents are of the kind ordinarily recorded in the usual course of business. The defendant argued that only letters written by someone with a duty to keep track of and record facts as they occur could qualify, and the court rejected that view as far too narrow. It found contemporaneity and the authenticity of the letters' timing established.

On particulars, the court was satisfied that they were provided as they became known. Some arose from examinations for discovery held late in the matter, and others from physical file folders located in June 2026. The plaintiffs' second particular amendment, dated August 25, 2026, followed two events: the second examination for discovery of Mr. Curliss in July 2026, and the defendant's answers to undertakings provided on August 21, 2026. The plaintiffs say this gave them critical information that was previously unknown to them. Because the particulars arose from the defendant's own documents, of which it would have been aware, the timing was adequately explained. The court agreed that the particulars add specificity and refine the pleadings rather than adding to them.

Alternatively, the court applied the test in Cambie Surgeries Corporation v British Columbia (Attorney General), 2018 BCSC 1141. It found that an amendment would not be inconsistent with the plaintiffs' pleadings and would not raise new issues; instead, it would narrow the pleadings.

The court also noted several points about the defendant's position:

• it had notice of the plaintiffs' intention to amend the particulars;
• it chose not to call Mr. Bruce Wilnechenko, even though he was originally on its witness list; and
• it had the opportunity to cross-examine the witnesses on the point.

The matters in the particulars go to key live issues, and the court agreed it is in the interests of justice that they be completely and finally determined in this proceeding. On limitation periods, the court observed that courts will at most consider this, and do not necessarily bar pleadings on that basis.

Following Lovelock v 045978 B.C. Ltd., 2025 BCSC 361, and Cun v Bateman, 2021 BCSC 1512, the court did not accept that the amendments change the complexion of the case. The defendant bore the onus of showing actual prejudice and did not persuade the court that it had. Even if some prejudice were shown, the court must balance prejudice to both parties. In doing so, it bears in mind that the plaintiffs would suffer more harm from losing the ability to prosecute a claim than the defendant, which may well lose a windfall opportunity to avoid the issue altogether.

Ruling and overall outcome

The plaintiffs succeeded on both applications. Their documents were admitted under the principled exception to the hearsay rule, the licence agreement letters were admitted under s 42 of the Evidence Act, and both binders can be marked as exhibits. The court dismissed the defendant's application to exclude evidence on technical features not particularized on May 16, 2024, including burner hole configuration and sizing. It added that, if necessary, it would alternatively grant the plaintiffs' amendment. These were interim evidentiary and pleadings rulings made before final argument, so no damages, costs, or other monetary amount was awarded, and the decision does not address costs. The court reserved the right to edit or add to these oral reasons, and said detailed reasons on the particulars issue would follow in any final judgment.