Shellcast Foundries Inc., Bodo Morgenstern and
Vera Stibernik (Appellants)
v.
Cercast Inc. and Vestshell Inc. (Respondents)
Court of Appeal, Jackett C.J., Cameron and
Bastin D.JJ.—Ottawa, June 15, 1973.
Practice—Stay of proceedings in action pending disposi
tion of appeal from interlocutory order—Federal Court Act,
s. 50.
Section 50 of the Federal Court Act is applicable to
authorize a stay of proceedings in the Trial Division pending
disposition of an appeal from an interlocutory order.
APPEAL.
COUNSEL:
Joan Clark, Q.C., for appellants.
Kent Plumley for respondents.
SOLICITORS:
Ogilvy, Cope, Porteous, Hansard, Marler,
Montgomery and Renault, Montreal, for
appellants.
Gowling and Henderson, Ottawa, for
respondents.
The judgment of the Court was delivered by
JACKETT C.J. (orally)—This is an appeal from
a decision of the Trial Division dismissing an
application, by the appellants, for a stay of
proceedings, in an action in which the appellants
are defendants, pending the disposition of an
appeal to the Supreme Court of Canada of an
appeal concerning the dismissal by the Trial
Division of a motion to strike out the Statement
of Claim in that action, which motion raises a
question as to whether the Court has jurisdic
tion in respect of the subject matter of the
action.
The appellants contend that there is an auto
matic stay of proceedings in an action where
there is an appeal from an interlocutory judg
ment. In the alternative the appellants contend
that, if the Trial Division had a discretion to
refuse the stay, that discretion was not properly
exercised.
The contention that there is an automatic stay
is based
(a) on previous decision of this Court and
other courts, and
(b) on the principles applicable in the Super
ior Court of Quebec.
The contention admittedly is dependent upon
the correctness of the appellants' position that
section 50 of the Federal Court Act does not
apply because, if that provision applies, it would
preclude reliance on previous authorities for the
proposition that the Court has no discretion in
the matter and would preclude reference to the
Quebec law which reference would have to be
made on the view that there is a "gap" in the
laws concerning practice in this Court. (See
Rule 5 of the Federal Court Rules.)
Section 50(1) of the Federal Court Act reads
as follows:
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.
We are all of the view that section 50 is applic
able to authorize a stay of proceedings in the
Trial Division pending disposition of an appeal
from an interlocutory order and that the applica
tion for a stay with which we are concerned had
to be dealt with under that section. The sole
remaining question is therefore whether the
learned Trial Judge erred, in the exercise of his
discretion under section 50, in deciding that the
appellants had not established, in this case, that
it was in the interests of justice that the pro
ceedings in the Trial Division be stayed.
With reference to that question, the appel
lants have failed to satisfy us that, in the exer
cise of his discretion, the learned Trial Judge
(a) gave insufficient weight to relevant
considerations,
(b) proceeded arbitrarily,
(c) took an erroneous view of the facts in
such a way as to affect the decision as to
whether a stay should be granted,
(d) acted on a wrong principle, or
(e) arrived at a conclusion that was so clearly
wrong as to amount to an injustice.
We are, therefore, of the view that the appeal
should be dismissed with costs.
Speaking for myself, I wish to add a comment
as to one aspect of the learned Trial Judge's
reasons for judgment. There is a suggestion
therein that one possibility is that this matter
might go to trial "on the merits under reserve of
the legal issue raised" and that the Trial Judge
might then "merely withhold his judgment until
this issue had been determined". With respect, I
feel constrained to say that, apart from special
arrangement between the parties, I am strongly
of the view that, after trial, the Trial Judge has a
duty to deliver judgment with all due despatch
on the basis of the law as it then appears and
that a delay to obtain the benefit of considering
a judgment to be delivered in the future is not
warranted. A stay, for the purposes of avoiding
substantial costs of preparation, of trial or of
both, is one thing. A stay or unnecessary delay,
after all costs have been incurred is quite
another thing and, unless pursuant to a request
of the parties, cannot be justified.
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.