A-901-80
Cutter (Canada), Ltd. (Appellant)
v.
Baxter Travenol Laboratories of Canada, Limited,
Travenol Laboratories, Inc., and Baxter Travenol
Laboratories, Inc. (Respondents)
Court of Appeal, Thurlow C.J., Heald and Urie
JJ.—Ottawa, December 23, 1980.
Practice — Application to stay judgment of Trial Division
ordering injunction and other relief in patent infringement
action — Application made while appeal pending in Court of
Appeal — Whether Rule 1909 to stay execution of judgment
by the Court applies — Definition of "Court" — Application
dismissed — Rule 1909 does not contemplate an application
such as this brought in the first instance in the Court of
Appeal — "Court" as used in Rule 1909 refers here to the
Trial Division — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 50(1) — Federal Court Rules 2(1), 1909.
APPLICATION.
COUNSEL:
J. D. Kokonis, Q.C. for appellant.
D. F. Sim, Q.C. and C. E. R. Spring for
respondents.
SOLICITORS:
Smart & Biggar, Ottawa, for appellant.
D. F. Sim, Q.C., Toronto, for respondents.
The following are the reasons for judgment
delivered orally in English by
THURLOW C.J.: This is an application for an
order staying the judgment of the Trial Division'
in a patent infringement action. The judgment
includes an injunction and an order for delivery up
or destruction of articles held to infringe the
patent. An appeal from the judgment has been
commenced.
The only provisions referred to as the basis for
such an application were subsection 50(1) of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
' [Judgment pronounced December 18, 1980, Court file No.
T-167-80.]
10, and Rule 1909 of the Rules of the Court.
Subsection 50(1) provides that:
50. (1) The Court may, in its discretion, stay proceedings in
any cause or matter,
(a) on the ground that the claim is being proceeded with in
another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice
that the proceedings be stayed.
As I see it, this is intended to authorize the
Federal Court of Canada to stay proceedings that
are pending in the Court. But even assuming that
it can be read as referring to the staying of the
effect of a judgment of the Court, a point on which
I have some doubt, in my view it is clear that the
procedure for invoking the authority of that provi
sion must be that provided by the Rules. Rule
1909 provides as follows:
Rule 1909. A party against whom a judgment has been given or
an order made may apply to the Court for a stay of execution
of the judgment or order or other relief against such judgment
or order, and the Court may by order grant such relief, and on
such terms, as it thinks just.
The word "Court" is defined as follows in Rule
2(1):
Rule 2. (1) .. .
"Court" means the Federal Court of Canada and, according to
the context, shall be taken as referring to the Trial Division
or the Court of Appeal, or both;
In my opinion, the use of the word "Court" in
Rule 1909 does not authorize the bringing of an
application such as this in the first instance in the
Court of Appeal. In the context, the Court
referred to, as it seems to me, is the Court in
respect of whose judgment the stay is sought, that
is to say, in this case, the Trial Division. An
interpretation of the Rule which would permit the
bringing of this application in the first instance in
the Court of Appeal, would, as it seems to me, be
fraught with consequences that could be unreason
able and unfair. Logically, it would lead to the
view that a judgment of the Court of Appeal on an
appeal from the Trial Division could be stayed by
the Trial Division. On the other hand, if such an
application were heard in the Court of Appeal by a
single judge, the unsuccessful party would have no
redress by appeal to a multiple Court other than to
appeal to the Supreme Court of Canada. As a
matter of interpretation, therefore, I am of the
opinion that the Rule does not contemplate an
application such as this.
This view is not inconsistent with either the
judgment of the Court in Marketing International
Ltd. v. S. C. Johnson and Son, Ltd. 2 or Procter &
Gamble Co. v. Bristol-Myers Canada Ltd. 3 as
both were instances of appeals from the Trial
Division on applications for a stay and the particu
lar point invoked here did not arise.
But even if the Rule can be read as authorizing
an application to the Court of Appeal, it seems to
me that to entertain the application in a case of
this kind when there has not previously been an
application to the Trial Division would create a
bad precedent and that in the exercise of our
discretion we should not entertain it until it has
been passed upon by the Trial Division. In Eng-
land, this particular consideration appears to be
the subject of a special Rule. Vide Order 59, Rule
14(4).
I would therefore dismiss the application with
costs.
* * *
HEALD J. concurred.
* * *
URIE J. concurred.
2 [1977] 2 F.C. 618.
3 (1979) 39 C.P.R. (2d) 171.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.