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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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