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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.
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PRATTE J. concurred.
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RYAN J. concurred.
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