A-622-76
Sabre Saw Chain (1963) Limited (Appellant)
v.
Omark Industries, Inc. and Omark Canada, Ltd.
(Respondents)
Court of Appeal, Jackett C.J., Pratte and Ryan
J.J. Ottawa, November 3, 1976.
Appeal from stay of execution of final judgment granting
permanent injunction Relief applied for pursuant to Rules
1213(a) or (b) Rule 1909 expressly disavowed Federal
Court Rules 1213(a) and (b) and 1909.
Appellant seeks to have part of a judgment restraining it
from further infringement of certain Letters Patent varied
either as of right under Rule 1213(a) or by the exercise of
discretion under Rule 1213(b). The appellant expressly disa
vows any application for relief under Rule 1909.
Held, the appeal is dismissed. The relief sought by the
appellant would not be a stay of execution in respect of which
there could be security pursuant to Rule 1213, which cannot
apply to a permanent injunction. In cases such as this consider
ation should be given to applying for the "other relief' author
ized by Rule 1909.
Steinberg's Ltée v. Comité Paritaire de l'Alimentation au
Détail, Région de Montréal [1968] S.C.R. 163 and Labo-
ratoire Pentagon Ltée v. Parke, Davis & Co. [1968]
S.C.R. 269, compared.
APPEAL.
COUNSEL:
D. F. Sim, Q.C., for appellant.
B. E. Morgan and G. A. Macklin for
respondents.
SOLICITORS:
Donald F. Sim, Q.C., Toronto, for appellant.
Gowling & Henderson, Ottawa, for
respondents.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: The appellant seeks to have a
Trial Division order staying execution of a final
judgment that is under appeal to this Court varied
so as to make it apply to that part of the judgment
whereby the appellant is restrained from further
infringement of certain Letters Patent.
The appellant contends that it was entitled to an
order staying execution of the whole of the judg
ment in question either, as of right, by virtue of
Rule 1213(a), or in a proper exercise of discretion,
by virtue of Rule 1213(b). The appellant expressly
disavows any application for relief under Rule
1909.
Rule 1213 reads:
Rule 1213. Execution of a judgment appealed against shall be
stayed pending the disposition of the appeal upon the appellant
(a) giving security satisfactory to the respondent that, if the
judgment or any part thereof is affirmed, the appellant will
satisfy the judgment as affirmed, or
(b) giving such security and doing such other acts and things
as are required by order of the Trial Division to ensure that,
if the judgment or any part thereof is affirmed, the judgment
as affirmed will be satisfied.
It is to be noted that what is sought is not an
order staying the "operation of the injunction"' or
"suspending" the injunction. 2 What is desired, and
counsel made this quite clear, is an order staying
the execution of the injunction. Such an order
would not have the result that the operation of the
injunction would be suspended. Whatever its result
might be, it would not seem to me that it would be
a stay of execution in respect of which there could
be "security" that the appellant will satisfy the
judgment, if it is affirmed or "security" that "the
judgment ... will be satisfied" if it is affirmed. In
my view, Rule 1213 has no application to a perma
nent injunction. I express no opinion as to whether
the introductory words of Rule 1213 contemplate
an order of the Court, and if so an order of which
Division, and I express no opinion as to whether
Rule 1213(a) requires that security have been
given before the introductory words have any oper
ative effect. I also express no opinion as to whether
the evidence before the Trial Judge was of a
sufficiently unqualified agreement as to "security
satisfactory to the respondent" to bring the Rule
into operation.
' Cf. Steinberg's Ltée v. Comité Paritaire de l'Alimentation
au Détail, Région de Montréal [1968] S.C.R. 163.
2 Cf. Laboratoire Pentagone Ltée v. Parke, Davis & Co.
[1968] S.C.R. 269.
Before leaving the matter, I should say that, as
it seems to me, if a similar case arises again,
consideration should be given to the "other relief"
authorized by Rule 1909. However, having regard
to the two 1968 decisions of the Supreme Court of
Canada mentioned earlier, I should not have
thought that the material in this case would have
provided any basis for the learned Trial Judge to
exercise any discretion that he might have exer
cised under that Rule.
I am of opinion that the appeal should be dis
missed with costs.
* * *
PRATTE J. concurred.
* * *
RYAN J. concurred.
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.