Date: 20050510
Docket: A-567-04
Citation: 2005 FCA 173
CORAM: DESJARDINS J.A.
BETWEEN:
MERCK & CO., INC. and MERCK FROSST CANADA & CO.
Appellants
(Plaintiffs)
and
BRANTFORD CHEMICALS INC.
Respondent
(Defendant)
Heard at Toronto, Ontario on May 10, 2005.
Judgment delivered from the Bench at Toronto, Ontario on May 10, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20050510
Docket: A-567-04
Citation: 2005 FCA 173
CORAM: DESJARDINS J.A.
BETWEEN:
MERCK & CO., INC. and MERCK FROSST CANADA & CO.
Appellants
(Plaintiffs)
and
BRANTFORD CHEMICALS INC.
Respondent
(Defendant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on May 10, 2005)
[1] This is an appeal of a decision of a judge of the Federal Court, dismissing an appeal from an order made by a prothonotary, dismissing the motion of the appellants for bifurcation of this action: Merck & Co. v. Brantford Chemicals Inc. (2004), 35 C.P.R. (4th) 4 (F.C.).
[2] The judge declined to reverse the decision of the prothonotary because, based on the principles stated in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at 463 (F.C.A.) and VISX Inc. v. Nidek Co. (1996), 72 C.P.R. (3d) 19 at 22, 23 (F.C.A.), he was not persuaded that the prothonotary had made any error that warranted his intervention.
[3] Despite the able submissions of counsel for the appellant, we are all of the view that the judge understood and applied the correct principles to the appeal before him.
[4] We note particularly that the appellant was not entitled to a bifurcation order in this case, just because bifurcation had been permitted in another case that, in certain respects, is similar to this one. Nor is the appellant entitled to expect that the judge or the prothonotary would disregard or discount the affidavit of counsel for respondent.
[5] We find no basis for the intervention of this Court. This appeal will be dismissed with costs.
"Karen R. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-567-04
STYLE OF CAUSE: MERCK & CO., INC., and
MERCK FROSST CANADA & CO.
Appellants
(Plaintiffs)
and
BRANTFORD CHEMICALS INC.
Respondent
(Defendant)
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 10, 2005
REASONS FOR JUDGMENT
OF THE COURT: (DESJARDINS, ROTHSTEIN, SHARLOW, JJ.A.)
DELIVERED FROM THE
BENCH BY: SHARLOW J.A.
APPEARANCES:
Allyson Whyte-Nowak FOR THE APPELLANTS (PLAINTIFFS)
David E. Lederman FOR THE RESPONDENT (DEFENDANT)
SOLICITORS OF RECORD:
OGILVY RENAULT
Barristers & Solicitors
Toronto, Ontario
FOR THE APPELLANTS (PLAINTIFFS)
GOODMANS LLP
Barristers & Solicitors
Toronto, Ontario
FOR THE RESPONDENT (DEFENDANT)