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A-355-76
Eli Lilly and Company and Eli Lilly & Company Canada Limited (Appellants)
v.
Marzone Chemicals Ltd. and The Gardeners Sales Ltd. (Respondents)
Court of Appeal, Jackett C.J., Heald and Ryan JJ.—Ottawa, December 9, 1976.
Procedure—Appeal from judgment dismissing motion to strike out portions of defence and counterclaim Not appro priate time to hear argument on point of constitutional law— Alternative procedure available by way of question of law set down for hearing before trial.
APPEAL from interlocutory judgment. COUNSEL:
D. Watson, Q.C., and K. Plumley for
appellants.
R. T. Hughes for respondents.
J. J. Robinette, Q.C., and D. Rutherford for
Attorney General of Canada.
SOLICITORS:
Gowling & Henderson, Ottawa, for appellants.
D. F. Sim, Q.C., Toronto, for respondents. Deputy Attorney General of Canada for Attorney General of Canada.
The following are the reasons for judgment of the Court delivered orally in English by
JACKETT C.J.: Mr. Hughes, it is not necessary to hear you.
We have not been persuaded that we should interfere with the discretion exercised by the learned Trial Judge when he dismissed the motion to strike. We have, therefore, concluded that the appeal should be dismissed with costs.
At the commencement of the hearing of this appeal, after hearing counsel, it was decided not to hear argument from the appellants as to the con stitutionality of a statutory provision relied on by the respondents. To avoid misunderstanding, we