Executive Summary: Key Legal and Evidentiary Issues

• Scope and timing of pre-trial document production under article 169 C.p.c. in a commercial/IP dispute concerning composite joist systems.
• Tension between broad exploratory disclosure and the prohibition on abusive “fishing expeditions,” particularly where the requested documents are highly confidential technical and commercial materials.
• Assessment of the prima facie sufficiency of Vescom’s pleadings (especially paragraph 23.1) to justify intrusive disclosure before defence, interrogatories and a potential motion to dismiss.
• Application of proportionality, good faith and transparency duties under articles 2, 18, 19 and 20 C.p.c. to manage litigation efficiently and avoid trial by ambush.
• Determination that several categories of requested documents are sufficiently tied to specific factual allegations (notably alleged product similarities and fire resistance) to be relevant at the exploratory stage.
• Allocation of procedural rights going forward: TMS must answer the document request within 30 days but retains the right to object, raise confidentiality and seek judicial determination on specific items, with costs in Vescom’s favour.

Facts of the case

Vescom Structures Inc. develops and manufactures joists and wall systems used in building construction, and has protected its brand and innovations, particularly the design of its composite joists. Under a contract between the parties, TMS Systèmes Inc. was authorized to manufacture, sell and install Vescom’s products in return for consideration. This agreement ended on 30 June 2019. During the contractual relationship, Vescom alleges it provided TMS with significant information, including confidential know-how and trade secrets, to allow TMS to operate as a manufacturer and distributor of Vescom’s products. In March 2019, before the end of the agreement, TMS informed Vescom that it did not intend to exercise an option to purchase Vescom’s rights and intellectual property. Instead, TMS advised that it had developed its own product and intended to commercialise it. Vescom commenced proceedings in 2020. Due to amendments to the claim and an appeal from an interlocutory decision, the matter remained at an early procedural stage when this judgment was rendered. A fourth amended originating application was filed on 5 November 2025, while the latest case protocol (no. 5) scheduled examinations on discovery of Vescom’s representatives by 22 May 2026 and set 30 September 2026 as the deadline for TMS to file its defence. The protocol also contemplated that Vescom would serve its expert report by 30 June 2026, but noted that this date originated from Vescom and that TMS asserted a priority right to obtain particulars, document production and to examine Vescom’s representatives before Vescom’s expert evidence was served.

Nature of Vescom’s claims

In the fourth amended originating application, Vescom alleges that TMS breached the contract by failing to declare all sales made during the contractual period. Vescom further claims that, after the relationship ended, TMS unlawfully used Vescom’s confidential information and trade secrets to develop and market its own composite joist product. The total monetary claim is approximately CAD 1.6 million in damages, based on alleged contractual breaches and misuse of Vescom’s intellectual property and confidential business information. A central allegation appears at paragraph 23.1 of Vescom’s pleading, where it asserts that TMS’s “Infringing Joist System” is identical or at least substantially similar to Vescom’s “Composite Joist System,” and lists technical similarities such as the type of welds, dimple design and placement, configuration of L-shaped angles, spacing and configuration of webs, joist seat design and the use of stiffeners. Vescom relies on these detailed alleged similarities to support its theory that TMS’s product unlawfully incorporates Vescom’s proprietary design and know-how.

Document production requested by Vescom

To support its expert analysis on similarity of products, trade dress and use of confidential information, Vescom brought a motion seeking extensive documentary production from TMS at this preliminary stage. The requested categories include photos of all composite joists manufactured by TMS since the termination of the memorandum of intent, with close-up photographs of welds, dimples, L-shaped angles, web spacing and connections, end webs and the joist seat. Vescom also seeks step-by-step documentation describing how the current joist is installed, including any use of stiffeners and how decking is laid and supported. Further, it requests documents on nominal and preferred joist spacings, detailed, step-by-step descriptions of TMS’s manufacturing process, and explanatory materials and tools used to calculate joist needs for particular projects. The list extends to all industry certifications for the current joist, including fire ratings, together with the files submitted to obtain those ratings. Vescom also asks for structural testing files (including weld validation and gravity load testing), complete joist designs (with calculations and weights) for two composite-joist projects each year from 2019 to 2025, TMS’s project lists over that same period with square footage and key project contacts, TMS’s quality assurance programs governing design, manufacturing and shipping, documentation for the deck profiles used in the floor system, TMS’s detail library for design and manufacturing, and all welding specifications and procedures for the current joist. In short, Vescom seeks a comprehensive technical and commercial picture of TMS’s joist product and its associated systems, to enable its experts to assess alleged copying and misuse of confidential know-how.

TMS’s objections and procedural stance

TMS resists the motion primarily on timing and scope. It characterises Vescom’s request as premature and tantamount to a “fishing expedition,” arguing that the motion aims to allow Vescom to establish its cause of action rather than to prove a claim already properly founded. TMS emphasizes that Vescom has not filed any exhibits demonstrating that its product or trade dress has actually been copied, and contends that the action rests on speculation. Given the highly confidential and sensitive nature of the technical and commercial documents at issue—relating to TMS’s own joist designs, manufacturing processes, quality programs and project lists—TMS argues it should be allowed to conduct examinations on discovery, obtain clarifications of Vescom’s allegations and potentially bring a motion to dismiss before being compelled to disclose such detailed proprietary information. In case protocol no. 5, TMS reserved its position, expressly stating that it considered Vescom’s request premature and that any such motion should follow the filing of the defence. TMS also planned to bring a motion to dismiss by 10 August 2026. At this stage, however, the Court notes that the parties have not been heard in detail on each specific document category, including the existence of particular documents, the basis for objections or the mechanisms for protecting confidentiality. The debate before the Court on this motion is narrowed to the admissibility and timing of Vescom’s document request as a whole.

Legal framework for early document production

Vescom bases its motion on article 169 of the Code of Civil Procedure. That provision allows a party to seek “any measure likely to ensure the proper conduct of the proceeding,” including an order that another party provide particulars of its pleadings or communicate a document, with the possibility of sanctions such as dismissal of the claim or defence or striking of allegations if a party fails to comply. The Court refers to the doctrinal commentary of Ferland and Emery, as cited in prior case law, to emphasize that article 169 must be read in conjunction with articles 2 and 20 C.p.c., which impose duties of transparency and good faith and favour the earliest and most complete disclosure of factual information and evidence, in the context of a fair judicial debate rather than a “trial by ambush.” The authors also underline that the new Code supports broader and more complete disclosure, including at the stage of negotiating the case protocol or at the first case management conference, and recognizes a stand-alone procedure for communication of a document, independent of oral examinations. The Court notes that a motion for communication of documents is permissible at any stage of the proceeding, even an initial one, and that the exploratory phase prior to trial is intended to facilitate communication of evidence enabling parties to establish the truth of their factual allegations. Under the modern regime, disclosure is no longer limited to documents a party intends to rely on at trial. At the same time, the Court reiterates that relevance must be assessed broadly at the exploratory stage and that the search for truth cannot devolve into a fishing expedition. The proportionality principle, reflected in articles 18 and 19 C.p.c., requires parties to limit the case to what is necessary to resolve the dispute and to refrain from acting in a manner that is excessive, unreasonable or contrary to good faith.

Limits on fishing expeditions and prematurity arguments

The Court recalls prior authorities in which actions or motions were found abusive or premature where fault was alleged solely on the basis of inferences or where document requests were aimed at supporting a yet-unfiled claim. It cites decisions where a claim was held irreceivable when the alleged fault rested only on deduction, and where a motion for communication of documents to support an as-yet unpleaded damages claim was considered premature, with access restricted to documents linked to specific factual allegations. The Court also refers to a decision stating that a lawsuit cannot be used as a springboard to see if evidence might exist to support a theory; a plaintiff must already be reasonably certain that a fault causing prejudice has occurred, and may not sue purely for exploratory purposes. These principles inform the analysis of whether Vescom’s motion is an improper fishing expedition and whether it has been brought too early in the life of the case.

Application to Vescom’s request

TMS contends that Vescom’s allegations about intellectual property and confidential information violations are speculative and unsupported. The Court disagrees. On the face of Vescom’s amended originating application, the alleged contraventions of Vescom’s intellectual property rights (the pleaded “fault”) are not purely speculative. Even though Vescom has not filed exhibits at this stage to substantiate its allegations, paragraph 23.1 of the pleading sets out, in concrete and technical terms, the elements of similarity between the two joist systems. The Court finds that Vescom’s motion, at least in part, plainly seeks documents directly linked to those alleged similarities. For example, the categories of documents relating to photographs of specific product features and technical details of the composite joist align with the comparative features described in paragraph 23.1. Similarly, documents concerning fire resistance and fire ratings could reasonably relate to other factual allegations in the claim. Given these connections, the Court concludes that Vescom’s request cannot be dismissed wholesale as premature or as a fishing expedition for all categories of documents. While some categories may ultimately be contested on relevance, burden or confidentiality grounds, the motion, viewed globally at this stage, falls within the ambit of permissible exploratory disclosure intended by article 169 and the broader disclosure philosophy of the Code.

Outcome and future procedural steps

In light of this reasoning, the Court rules that Vescom’s motion for communication of documents is admissible. It orders TMS to respond to the motion and address the requested production within 30 days of the judgment, expressly preserving TMS’s right to raise objections, dispute the existence of particular documents and invoke confidentiality protections. The parties are reminded of their duty of cooperation under the Code and are left free to seek judicial determination of any further disputes concerning specific document categories, confidentiality arrangements or objections that may arise during implementation of the order. On this preliminary motion, Vescom Structures Inc., as plaintiff, is the successful party. The Court awards costs of justice (“avec frais de justice”) in Vescom’s favour but does not grant any damages or quantify any monetary award at this stage; the underlying claim of approximately CAD 1.6 million in damages remains to be adjudicated, and the exact amount of any costs or future monetary award cannot be determined from this judgment alone.