B. F. Goodrich Company (Plaintiff)
v.
Firestone Tire and Rubber Company (Respond-
ent)
and
Firestone Tire and Rubber Company (Plaintiff)
v.
B. F. Goodrich Company (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Cameron D.J.—February 15, 1973.
Patents—Conflict proceeding—Plaintiff ordered to implead
certain patent claims—Appeals by plaintiff and defendant—
Motion to consolidate appeals refused.
In a conflict proceeding under section 45 of the Patent
Act in which the F Co. was plaintiff and there were four
defendants, Noël A.C.J. gave an interlocutory judgment
ordering the plaintiff to implead certain patent claims. One
of the defendants filed an appeal against that judgment and
some days later the plaintiff filed a separate appeal against
the same judgment.
Held, a motion to consolidate the two appeals should not
be granted on the material before the Court.
APPEAL from Trial Division.
COUNSEL:
Federal Court Rule 324 for plaintiff and
respondent.
SOLICITORS:
Ogilvy, Cope, Porteous, Hansard, Marler,
Montgomery and Renault, Montreal, for Fire-
stone Tire & Rubber Co.
Herridge, Tolmie, Gray, Coyne and Blair,
Ottawa, for Phillips Petroleum Co.
Gowling and Henderson, Ottawa, for B. F.
Goodrich Co.
G. H. Riches, Q.C., Toronto, for Mon-
tecatini, Societa Generale per l'Industria
Mineraria e Chimica.
JACKETT C.J.—There are on these two files
two applications in writing under Rule 324, viz:
(a) an application to consolidate the appeals,
and
(b) an application for a consent judgment
disposing of the consolidated appeal.
The appeals are in respect of an interlocutory
judgment in a conflict proceeding under section
45 of the Patent Act. In that proceeding, Fire-
stone Tire and Rubber Company, by whom the
proceeding was initiated, appears as the plain
tiff, and B. F. Goodrich Company, Montecatini,
Societa Generale per l'Industria Mineraria e
Chimica, and Phillips Petroleum Company
appear as defendants.
On December 23, 1971, pursuant to an
application made by Phillips Petroleum Compa
ny, the Trial Division ordered the plaintiff to
"implead in the action applications covering
Claims C-6 and C-1 which claims were granted
to it".
On December 24, 1971, the predecessor of
Goodrich filed a notice of appeal from that
judgment in this Court (A-166-71) and on
December 30, 1971, the plaintiff filed a separate
notice of appeal against the same judgment
(A-4-72). All four parties appear as parties in
both appeals.
There must be considerable doubt as to the
right of a party in a proceeding in another court
to launch an appeal from a decision in that court
once an appeal has been launched from that
decision by another party. In any event, how
ever, there can be no doubt, in my mind, that it
is an abuse of the process of the Court to have
two appeals from the same judgment running
along side by side. Any party whose rights could
not have been protected by merely opposing or
supporting the appeal could have protected his
rights in the first appeal by an appropriate
notice under Rule 1203. In my view, proceed
ings should have been instituted to quash the
second appeal under section 52(a) of the Feder
al Court Act or, at the least, to stay it. The
present application to consolidate would bring
the matter back to where it should have been
but I am not satisfied that the Court should,
even on consents of all the parties, give its seal
of approval to such an awkward and confusing
method of proceeding without being shown that
there is some possible reason for it when all that
is necessary to solve the matter is to quash or to
stay the second appeal.
For the above reason, I am of opinion that the
application to consolidate should not be granted
subject to the right of the applicant to bring the
motion on before the Court on notice to all the
other parties. I might add that on any such
renewal of the application, the applicant will
have to show more than an approval as to
"form" if it is relying on a consent from a party
to the making of the order. As far as Phillips
and Montecatini are concerned, I can find no
consents to this order among the material but
only approvals of the "form" of the order.
The application for consent judgment is an
application for a judgment
that the Judgment of the Trial Division ... be and is
hereby reversed, the whole without costs so that following
such reversal The Firestone Tire & Rubber Company be not
required to implead applications covering claims C-6 and
C-4 in the action between the parties ... .
I have two difficulties with this proposed order.
It would not seem to me that, the Trial Division,
on the application outlined at the beginning of
the Reasons of the Associate Chief Justice,
could have ordered that "Firestone Tire and
Rubber Company be not required to implead
applications covering claims C-6 and C-4" and,
if the Trial Division could not have so ordered
on that application, I have grave doubts that this
Court can make such an order on an appeal
from the order made pursuant to that applica
tion. Secondly, even if the application were
merely for a judgment of this Court on consents
setting aside the order of the Trial Division, I
should have thought that it would have been
necessary to make it clear that it was a consent
order and that it did not relieve the Trial Divi
sion from considering whether the omission of
the claims in question from the action in some
way make it impossible to grant relief sought by
one or other of the parties. It must be remem
bered that a section 48 proceeding is not an
ordinary action. I do not, however, wish to be
taken as expressing any opinion about the
merits of the order made by the Trial Division
except to say that it obviously raises a question
of difficulty on which the Court will require full
argument when it does come on for decision.
The remarks that I made about an approval to
form not being a consent apply equally to the
application for judgment.
The application for judgment should not, in
my view, be granted but the application may be
renewed in Court.
An application for judgment must be made
before a Court consisting of three judges. The
applicant may consult the Registry to obtain a
date and place when the motions may be
renewed.
It is, finally, to be noted that the conflict
action in the Trial Division has, presumably,
been held up, since December, 1971, by this
appeal from an interlocutory order. Unless steps
are taken to have these appeals disposed of
without further delay, the Court will have to
consider initiating proceedings with a view to
quashing the appeals under Rule 1100.
* * *
THURLOW J.—I agree that the orders sought
should not be granted on the material before the
Court but that the applicant be at liberty to
bring them on for hearing.
* * *
CAMERON D.J.—I agree.
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.