Paper Machinery Ltd. et Al. v. J.O. Ross Engineering Corp. et Al., [1934] SCR 186

Supreme Court of Canada

Paper Machinery Ltd. et Al. v. J.O. Ross Engineering Corp. et Al., [1934] S.C.R 186

Date: 1934-01-26

PAPER MACHINERY LIMITED

AND

GUSTAF HELLSTROM (DEFENDANTS- APPELLANTS)

AND

J. 0. ROSS ENGINEERING CORPORATION AND ROSS ENGINEERING OF CANADA, LIMITED RESPONDENTS. (PLAINTIFFS)

PRESENT: Duff, C.J. and Rinfret, Lamont, Cannon and Crocket JJ.

ON APPEAL FROM THE EXCHEQUERS COURT OF CANADA Practice-Judgments-Power of court to amend judgment.

The court has no power to amend a judgment which has been drawn up and entered, except (1) where there has been a slip in drawing it up, or (2) where there has been error in expressing the manifest intention of the court. (In re Swire, 30 Ch. D. 239; Ainsworth v. Wilding, [1896] 1 Ch. 673; MacCarthy v. Agard, [1933] 2 K.B. 417, and other cases, cited.)

MOTION for re-hearing of an appeal (treated by the Court, as stated in the judgment, as a motion praying the Court to amend its judgment).

The defendants had appealed to this Court from the judgment of Maclean J., President of the Exchequer Court of Canada[1], holding that the plaintiffs' letters patent for new and useful improvements in processes of drying and apparatus therefor were valid and had been infringed by the defendants.

By the judgment of this Court, delivered on June 16, 1933, a new trial was ordered in the terms of the reasons for judgment, which reasons (delivered by Hughes J., with whom the other members of the Court, Rinfret, Lamont, Smith and Crocket JJ., concurred) were as follows :

The respondents brought this action against the appellants for the alleged infringement of a patent.

We are all of opinion that the peculiar circumstances of the case require that the judgment of the Exchequer Court of Canada should be vacated and set aside, and that the appellants should be permitted to supplement the present record by adding to paragraph 10 of the amended particulars of Objections, sub-paragraphs (v) and (w) as set forth in the notice of motion dated the 26th day of June, 1931, which may be found at page 8 of the case; and also by adding further evidence in regard thereto.

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Counsel for the appellants consented, if a new trial were granted for the above purposes, to waive their remaining arguments on this appeal as to absence of subject matter, as to anticipation and other matters, reserving, of course, their full rights to urge these and all other defences on the new trial and on any appeal therefrom.

Nothing in this judgment is intended to be an approval or disapproval of any of the findings of the learned trial judge.

If either party desires any further amendment, application therefor may be made to the Exchequer Court of Canada.

The costs of the last trial will be costs in the cause. The costs of this appeal will be costs to the appellants in any event of the cause.

The judgment was drawn up and duly entered.

Subsequently the plaintiffs (respondents) made the present motion.

O. M. Biggar, K.C., and R. S. Smart, K.C., for the motion.

W. F. Chipman, K.C., contra

The judgment of the court was delivered by

RINFRET, J.-The respondents apply for a re-hearing of this appeal on the following grounds:

that the reasons for judgment and the formal judg­ment failed to provide the usual terms for such orders as settled in the case of Baird v. Moule's Patent Earth Closet Co. [2] as set out in the report of Edison Tele­phone Co. v. India Rubber Co.[3], and followed in subsequent cases;

that the reasons overlooked the statement of counsel for the appellants made at the trial before the Exchequer Court that they did not intend to put in any further evidence with regard to the amendment they sought to add to the particulars, and consequently the costs of the appeal should not have been paid by the respondents.

In our view, this is not matter for re-hearing. In effect, it is a motion praying the Court to amend its judgment. Treating it as such, we find the situation to be as follows:

Judgment was delivered by this Court on the 16th June, 1933, setting aside the judgment of the Exchequer Court and directing that the appellants have leave to supplement the record by adding to the particulars of objections PRESENT: Duff, C.J. and Rinfret, Lamont, Cannon and Crocket JJ.

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further particulars set forth in the notice of motion dated 26th June, 1931, before the Exchequer Court; also giving leave to add further evidence in regard thereto. Subse­quently the judgment was drawn up and duly entered. In fact, the respondents in this Court petitioned His Majesty the King in Council for special leave to appeal from the judgment; and, on 27th November, 1933, the petition for leave was dismissed with costs.

The question really is therefore whether there is power in the Court to amend a judgment which has been drawn up and entered. In such a case, the rule followed in Eng­land is, we think,-and we see no reason why it should not also be the rule followed by this Court- that there is no power to amend a judgment which has been drawn up and entered, except in two cases: (1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court (In re Swire[4] ; Preston Banking Company v. Allsup & Sons [5] ; Ainsworth v. Wilding[6]). In a very recent case (MacCarthy v. Agard[7], the authorities were all reviewed and the principle was re-asserted. In that case, although, in-deed, all the judges expressed the view that the circum­stances were particularly favourable to the applicant, but because neither of the conditions mentioned were present, the Court of Appeal came to the conclusion that it had no power to interfere. (The rule as stated was approved by the Privy Council in Firm of R.M.K. R.M. v. Firm of M.R.M. V.L.[8]).

The respondents' application does not come under the so-called slip rule. Nor is it apparent that. some matter which should have been dealt with in the reasons has been overlooked; and, in our view, the minutes as settled accord with the judgment pronounced by the Court. Any doubt which might have subsisted on those points must have been made clear by the discussion before their Lordships of the Privy Council and the order made upon the petition for special leave to appeal.

The case involves the validity of a patent. A question of that nature concerns not only the immediate parties; it

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concerns as well the public to a large extent (Lightning Fastener Co. Ltd. v. Canadian Goodrich Co. Ltd.[9]). Bearing that in mind and in order to get at the real merits of the question, the Court exercised its powers under secs. 47 and 49 of the Supreme Court Act; and a perusal of the reasons shews that the order was intended to be made in the form of the minutes as settled and as interpreted by the Privy Council with regard to the right of both parties to adduce further evidence. Except as to costs of the appeal, which were granted to the appellant on account of circumstances which, in the reasons, are stated to have been "peculiar ", the judgment of this Court does not prevent the Exchequer Court from adopting the form of order as settled in the case of Baird v. Moule's Patent Earth Closet Co.[10], should the respondents elect before it to abandon the suit, as a consequence of the amendments which have been allowed.

The motion will therefore be dismissed with costs.

Motion dismissed with costs.

Solicitors for the appellants: Brown, Montgomery & McMichael.

Solicitors for the respondents: Smart & Biggar.

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