A-38-81
Catalyst Research Corporation (Plaintiff)
v.
Medtronic, Inc. and Medtronic of Canada Ltd.
(Defendants)
Court of Appeal, Thurlow C.J., Pratte and Ryan
JJ.—Ottawa, January 26, 1982.
Practice — Service — Appeal from Trial Judge's dismissal
of application by defendant, Medtronic, Inc., to set aside
service of statement of claim and ex parte order authorizing
service ex juris — Defendant applied for security for costs
without reserve of rights prior to raising question of jurisdic
tion — Whether Trial Judge erred in inferring waiver of
objection to jurisdiction — Appeal dismissed.
APPEAL.
COUNSEL:
Ross G. Gray, Q.C. for plaintiff.
George E. Fisk and G. W. Wall for de
fendants.
SOLICITORS:
Herridge, Tolmie, Ottawa, for plaintiff.
Gowling & Henderson, Ottawa, for defend
ants.
The following are the reasons for judgment of
the Court delivered orally in English by
THURLOW C.J.: We do not need to hear you
Mr. Gray.
We have not been persuaded that the learned
Trial Judge [[1981] 2 F.C. 620] erred in dismiss
ing the appellant's application. We agree with his
conclusion and with his reasons for it both on the
point as to the case being a proper one for service
ex juris and as to the waiver of the objection by
obtaining security for costs. We do not think,
however, that it should be taken that every
application for security for costs by a foreign
defendant will necessarily amount to an attorn-
ment to the jurisdiction. It will depend on the
particular situation. On the facts of the present
situation, including application without reserve of
rights on behalf of the foreign defendant and the
Canadian defendant for security which plainly is
for costs of the action itself and the fact that the
motion was not made simultaneously with that
raising the question of jurisdiction but preceded it
by more than a month, we think a waiver of the
objection to the jurisdiction was properly inferred.
The appeal is dismissed with costs.
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