VOL. XVIII.] EXCHEQUER COURT REPORTS. 241 THE MARCONI WIRELESS TELEGRAPH COM- • 1-9 la PANY OF CANADA, LIMITED, Nov. 12. PLAINTIFFS; . AND CANADIAN CAR & FOUNDRY COMPANY, LIMITED, DEFENDANTS. Courts—Co-ordinate jurisdiction—Interlocutory injunction—infringement of patent—Vexatious litigation—Comity—Convenience of parties. L If the Superior Court of the Province of Quebec has dismissed a motion for an interlocutory injunction in a suit instituted by writ and declaration, the Exchequer Court, being a court of coordinate jurisdiction, will not entertain a • similar motion; the finding of a court of co-ordinate jurisdiction cannot be overlooked. 2.: Where no writ and declaration were so instituted, the Exchequer . Court will refuse such motion on the ground of comity. . 3. In an application for an interlocutory injunction, the Court will cautiously consider the degree of convenience and inconvenience to the parties, and whether the damages resulting from the-refusal of the injunction would be irreparable. Plimpton v. •Spiller, (1876), 4 Ch. D. 286, 289, et seq., followed. 4. Comity, as applied to judicial proceedings, means nothing more than the observance of a rule of etiquette or conventional decorum between courts of co-ordinate jurisdiction. It is not a rule of law, because it is not imperative. It is a useful ultra-legal adjunct to.the judicial doctrine of stare decisis. CTION for 'the infringement of .a patent. • Tried before the Honourable Mr. Justice Audette, 4t Ottawa, November 12, 1918. • . E. Lafleur, K.C., and C. Sinclair, for plaintiffs. Peers Davidson, K.C., for defendants. A.UDETTE, J. (November 12, 1918) delivered judgment.
242 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1918 This is an action for the infringement of two Cana- TIlE MARCONI dian patents of invention, one of which appearing, TELEGR . A P11 Co on its face, to have already expired. V. CANADIAN CAR The matter comes now before the Court on two AND FOUNDRY Co. motions, on behalf of the plaintiffs, against the two RJeuadsgomnse nt. d e fendants, respe ~ ct ively, for interlocutory injunc- tions, until trial, seeking to restrain the defendants from supplying, vending, etc., a certain wireless apparatus protected by à patent of invention, which, prinzâ facie, is good and valid until the question of its validity has been raised and passed upon. The • Superior Court of the Province of Quebec and the Exchequer Court of Canada have, in such matters, concurrent and co-ordinate jurisdiction. Similar motions and applications to those now made here were made before a judge of the Superior Court, at Montreal, P.Q., and on October 25, 191.8, and judgment was thereon rendered dismissing the' same with costs.' The question raised in this Court is identical with that decided between the same parties by the Superior Court Judge of the Province of Quebec, upon similar interlocutory applications, and the defendants are brought twice before the Courts in respect of one and the same matter. While I would not rest my decision on the ground that the question is res judicata in the strict sense of the term, I would, however, feel bound to exercise that jurisdiction which is inherent in the Court to prevent vexatious litigation which amounts to an abuse of its process. Stephenson v. Garnett.' At p. 81. of Everett & Strode—Law of Estoppel, (2nd Ed.) we find: "So that, even if the former pro ' 43 D.L.R. 382. 2 [1898), 1 Q.B. 677, 13 Hals. 334.
VOL. XVIII.] EXCHEQUER COURT REPORTS. 243 `f ceeding Were interlocutory, yet if the Court .de-118 "cided'an issue between the parties which was with- MARCONI THWERI E LESS "in its 'jurisdiction, the same cannot be raised in TELECGRAPH "subsequent proceedings between the same parties; CANA» AN cm, AND co NDRY "and though the matter may not be, strictly speak- "ing, res judicata, an attempt to raise such an issue to mge "will be dealt with as frivolous and vexatious, and "an abuse of the process of the Court." These motions and application were entertained at Montreal, P.Q., without the issue of any writ or institution of an action, but with, I am informed by counsel, the undertaking to do so. The Exchequer court has obviously .. jurisdiction to entertain such matters by way of appeal from the Superior Court of the Province. And had the Superior Court suit been duly instituted with writ and declaration, I would, at this stage, without hesitation, have refused to entertain or consider these motions and sent the plaintiffs back, as a matter of propriety, to' the forum first chosen by them, when they were at liberty to institute their suit in either Court. Having, gone so far it remains for me to say that ' Mr. Lafleur, of counsel for the plaintiff, declared at bar that no writ had been issued in the Superior Court at Montreal, and he, f orinally . declared, on behalf of the plaintiffs, they did not intend to prosecute any further proceedings at Montreal. To that extent, however, I am free and untrammelled; but, I cannot overlook and ignore the finding of a learned judge upon similar matter in a court of co-ordinate jurisdiction: In- Ontariol a Judge is by law bound by that decision. R.S.O. 1914, ch. 56, sec. 32.
244 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1918 Must. the motions be refused out of considerations T ~VIREEsoNI of comity? A careful examination of the subject TELEGR . APH Co v. will show that the word "comity", as applied to CANADIAN CAR judicial proceedings, means nothing more than the AND FOUNDRY CO. observance of a rule of etiquette • or conventional RJ e u a dg s m o ent s fo.r decorum between courts of co-ordinate jurisdiction. -- It is not a rule of law, because its obligation is not imperative; and the most that can be said of it in a practical way, is that it is a useful ultra-legal adjunct to the judicial doctrine of stare decisis. Nothing, however, need be added to the admirable definition of the term by Mr. Justice Brown in the patent • case of Mast, Foos cC Co. v. Stover Mfg. Co., 1 where it was claimed that comity demanded that the Court below should have followed the decision of another Court of co-ordinate jurisdiction on 'the saine patent. He says : "Comity persuades, but it does not "command. It declares not how a case shall "be decided, but how it may with propriety be de- cided. It recognizes the fact that the primary duty "of every Court is to dispose of cases according to "the law and the facts; in a word, to decide them "right. In doing so the Judge is bound to determine "them according to his own convictions. If he be "clear in those convictions he should follow them. "It is only in cases where, in his own mind, there "may be a doubt as to the soundness of his views "that comity comes in play, and suggests a uni- formity of ruling to avoid confusion, until a higher "Court has settled the law. It demands of no one "that he shall abdicate his individual judgment, "but only that deference shall be paid to the "judgments of the co-ordinate tribunals. Clearly it "applies only to questions which have been actually 1 (1900), 177 U.S. 485 at p. 488.
VOL. XVIII.) EXCHEQUER COURT REPORTS. "decided and which arose under the same' facts." Now seeing that a similar motion has been refused by a Judge of a provincial Court of co-ordinate TEL coR.A jurisdiction, considerations of comity or propriety. would induce me to stay my hand on this motion even' if there were not other and more cogent reasons %dg ILT present in the material before me for declining to make an order for an interim injunction. In such matters, does not the fundamental prin- ciple of law rest upon the question of, first, irrepar able damage ; 2nd, balance of convenience, and 3rd, the maintenance, if possible, of the status quo, as between the parties Until the hearing upon the merits.? -In a case of this nature the Court has first to sider whether. the damages resulting from the refusal of the injunction would be irreparable, and. upon this point ithas been asserted, without contradiction, that the defendants are quite solvent and well able to satisfy any pecuniary . damages that might ultimately be adjudicated against them. And . it is further contended by counsel on behalf of 'the plaintiffs that besides this pecuniary damage there is also that class of damage. which would result from the dissemination of • these alleged infringing machines" all over the world; an advertisement amounting to an encouragement to further infringe ments. But this' class of damage is too remote .and • cannot be classed with what is termed, in such matters, as. irreparable damage. Moreover, it appears from the argument before me, that. the apparatus now being insta'lled by the defendant company upon the twelve vessels which are being built for the Republic of France are similar used on the French and American vessels, and that . 245 1918 T. VÿiNLESb NI SG P H CANAD AN CAR AND FOUNDRY Co • -• .• - conto those installed and
246 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1918 that is the very reason why 'they are now so installed THE MARCONI . WIRELESS on these twelve vessels with the view of maintaining TELEGR . API[ Co uniformity in the two fleets. There could be no O. CANADIAN CAR justification to interfere peremptorily with such un- AND FOUNDRY CO. dertakings. Reasons for Judgment. Moreover, as said in the leading case of Plimpton v. Spiller, 1 in such case the Court will cautiously consider the degree of convenience and inconvenience to the parties by granting or not granting the injunction. And as there pointed out, on the authority of the judgment of Lord Cottenham, in Neilson v. Thompson,' there are cases in which very much greater mischief would be caused the defendant by the granting of an injunction, if it should ultimately turn out that it ought not to have been granted, than you would cause the plaintiff by postponing the injunction when there was ground for its being . granted. If the injunction were granted in the present case the defendants would be unable to deliver, completed and ready for use, the balance of the twelve vessels under construction, and these vessels would be tied up in the ice, at Fort William, for the winter. The practical effect of such injunction would be to stop a going trade and adopt a course which might result in very. great difficulty in finally assessing compensation. If in the present case the defendants should ultimately prove to be right and an injunction were to issue to-day, the damages would be most serious. And it is worthy of mention that all vessels delivered and which, as was mentioned at the argument, were at Montreal at the time of the application made 1 4 Ch. D. 286, 289, et seq. = (1841), 1 Webs. P. R. 278.
VOL. XVIII.] EXCHEQUER COURT REPORTS. there, would have• been foreign vessels' protected by sec. 53 of the Patent Act. Under the circumstances I have elusion that the plaintiffs have not for interlocutory injunction and the two motions are dismissed. The costs of and incidental to these mo- fions will be, as is usual in such eases, costs in the cause. Solicitors for plaintiffs: Greenshields, Green-shields ce Co. Solicitors for defendants : Davidson, Wainwrigi & Co.' 247 1 lRvI RELE59NI corne to, the OR T NGR n -tLco .. A PH ruade out a case ChN ADIAN CAR AND FOUNDRY Co. Re J u aso ns fo dg ment. r Motion dismissed. ht
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.