David Watson

The applicant union filed an application for certification without requesting a pre-hearing vote.

The intervener union subsequently filed an application by way of intervention and requested a pre-hearing vote.

The applicant objected to the intervener's membership evidence, arguing it should be assessed as of the applicant's application date rather than the terminal date.

The Board held that when a subsequent application requesting a pre-hearing vote is heard together with a regular application, both are treated as regular applications.

The Board assessed membership evidence as of the terminal date, found both unions had sufficient support, and ordered a representation vote.

The appellants infringed a patent held by Congoleum, who had granted a non-exclusive licence to the respondent Domco.

The appellants settled with Congoleum but not with Domco.

The Supreme Court of Canada held that a non-exclusive licensee is a 'person claiming under' the patentee within the meaning of s. 57(1) of the Patent Act.

Therefore, the licensee has a statutory right of action for damages sustained by reason of the infringement, which the patentee cannot extinguish by settling with the infringer.