Date: 19990122
Docket: A-630-97
CORAM: STONE J.A.
LÉTOURNEAU J.A.
SEXTON J.A.
BETWEEN:
CAMCO INC. and
GENERAL ELECTRIC COMPANY
Appellants
(Defendants)
- and -
WHIRLPOOL CORPORATION and
INGLIS LIMITED
Respondents
(Plaintiffs)
REASONS FOR JUDGMENT
STONE, J.A.:
[1] This appeal from a judgment of August 18, 1997, was heard together with an appeal from a consent judgment of the Trial Division of September 10, 1997.
[2] The first judgment was pronounced in an action brought by the respondents for infringement of their Canadian Patent No. 1,095,734 (the "'734 Patent") as well as for infringement of their Canadian Patent No. 1,049,803 (the "'803 Patent"). That action proceeded to trial before Cullen J. The second judgment was granted in an action brought by the respondents against Maytag Corporation, Maytag Limited and Maytag Quebec Inc. for infringement of the '734 Patent. That action did not proceed to trial. It was settled on consent with the pronouncement of the judgment of September 10, 1997. By that judgment the reasons for judgment of Cullen J. in the first action as they relate to the '734 Patent and the evidence before the Court during the trial of that action were adopted and made part of the trial record in the second action.
[3] The respondents asserted in the first action that all of the claims in the '734 and '803 Patents were valid and infringed by the appellants. Cullen J. found that the claims of the '734 Patent were valid and infringed and that the claims of the '803 Patent were valid but not infringed, and pronounced judgment accordingly. Neither the finding of validity nor that of infringement of the '803 Patent has been appealed against by the appellants or respondents respectively.
[4] The consent judgment of September 10, 1997 pronounced in the second action declared that all of the claims of the '734 Patent were valid and that the appellants therein had infringed claims 1 through 5, 7 and 9 through 13 of that patent. The judgment was consented to on a "without prejudice" basis so as to preserve the right of appeal with respect to the issues of the validity of the '734 Patent. The defendants in that action have pursued their own appeal in Court File No. A-676-97 which was heard at the same time as this appeal and which is limited to the same issues of validity as are raised in this appeal.
Background
[5] On December 11, 1974, the respondent Whirlpool Corporation applied for a patent in respect of a unidirectional agitation accessory for an automatic clothes washing machine. This resulted the '803 Patent being issued on June 3, 1979. The "Abstract of the Disclosure" appearing on the second page of the '803 Patent reads:
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An agitator accessory for washing machines having an oscillating vertical-axis agitator, the accessory comprising a sleeve which is securable to the barrel of the agitator in coaxial alignment therewith, the sleeve having a vane means attached thereto. A one-way clutch means is included to rotate the agitator accessory incrementally, during one-half cycles of the oscillatory agitator movement, to thereby force fabrics being washed downward along the agitator and toward vanes extending from the skirt of the agitator. |
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Claim 1 of the '803 Patent reads:
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1. An agitator for a washing machine having a driven oscillating shaft, said agitator comprising: a first agitator portion capable of being mounted on said shaft by means of a locked, non-rotating connection and having an upper part, and a lower part provided with outwardly extending substantially vertically oriented vanes; a second agitator portion in the form of a sleeve having at least one outwardly extending inclined vane, said sleeve being rotatably mounted on the upper part of the first agitator portion; and a one-way clutch located between the first and second agitator portions, the first agitator portion being adapted to drive said clutch and the second agitator portion being adapted to be driven by said clutch so that rotation of the first agitator portion gives a positive rotation to the second agitator portion in only one direction of rotation of the first agitator position, said inclined vane being inclined upwardly with respect to the direction of positive rotation of the second agitator portion, and at least the lower parts of said vertically oriented vanes extending radially outwardly by a greater amount than said at least one inclined vane. |
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[6] On December 12, 1974, the respondent Whirlpool Corporation applied for a patent on a combined oscillating and unidirectional agitator for an automatic clothes washing machine. This resulted in the '401 Patent being issued on February 2, 1979. The patent's Abstract of the Disclosure reads:
Improved agitation means for use in an automatic clothes washing machine of the type in which an agitator is oscillated by means of a drive mechanism to secure agitation of the clothes. The present invention provides an upper agitator element coaxial with a lower agitator element, the upper agitator element being provided with vane means which urge clothes downwardly toward the lower agitator element and impart a highly efficient rollover motion to the clothes.
Claim 1 of the '401 Patent reads:
1. A washing machine having a driven oscillating shaft and two vertically aligned agitators mounted on the shaft, wherein the lower agitator is provided with outwardly extending vertically oriented vanes and is mounted on a lower part of the shaft by means of a locked, non-rotating connection, and the upper agitator is provided with at least one outwardly extending inclined vane and is mounted on an upper part of the shaft by means of a one-way clutch so that rotation of the shaft in one direction gives a positive drive to both agitators, and rotation of the shaft in the reverse direction gives a positive drive to the lower agitator only, said inclined vane being inclined upwardly with respect to said one direction of rotation of the shaft, and at least the lower parts of said vertically oriented vanes extending radially outwardly by a greater amount than said at least one inclined vane.
[7] On May 27, 1977, the respondent Whirlpool Corporation applied for a patent in respect of combined agitators for an automatic clothes washing machine. This resulted in the '734 Patent being issued on February 17, 1981 for a "Combined Oscillating and Unidirectional Agitator for Automatic Washer". At the end of the disclosure are found the claims of the patent. Claim 1 reads:
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1. An agitator assembly for a clothes washing machine comprising: |
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a first agitator element, |
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a second agitator element, |
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drive means for driving said first agitator element in an oscillatory motion and for concurrently driving said second agitator element in an unidirectional rotary motion, said first and second agitator elements cooperating to circulate the contents of the machine in a toroidal rollover pattern within the washing machine, and means associated with said second agitator element for forcing articles adjacent thereto into the oscillatory path of said first agitator element and into said rollover pattern, said first agitator element having formed thereon flexible vanes which are free to flex in response to oscillatory motions of the agitator element, thereby to yieldingly engage fabrics deflected downwardly and lessening high impact loading of the first agitator element. |
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The "first agitator element" is referred to in the record as the "lower oscillating agitator" and the "second agitator element" as the "upper oscillating agitator". I shall refer to these elements as the "lower oscillating element" and the "upper auger element" respectively.
[8] The defences to the claimed infringement of the '734 Patent at the trial before Cullen J. centered mainly on the validity of that patent based on double patenting, covetousness of the first eleven claims and obviousness. A further defence was that claims 6, 8 and 14 of the '734 Patent could not properly be said to have been infringed in any event because whereas the drive means of the invention was constructed and arranged to "continuously drive" or "continuously rotate" its upper element, that of the appellants was not so arranged.
The issues
[9] The issues in both appeals with respect to the validity of the '734 Patent are the same. Both sets of appellants attack the judgment of Cullen J. in the first appeal on the basis that he erred in rejecting the contentions that the '734 Patent amounted to double patenting of the same invention as was patented by the respondents in the '401 or '803 Patents or was but an obvious modification of that invention. Moreover they contend that putting flexible vanes on the lower oscillating element of the invention disclosed in the '734 Patent was obvious, that the substituting of these vanes was a mere obvious improvement to that which was disclosed in the '401 and '803 Patents and that the first eleven claims on the '734 Patent were broader than the invention and therefore covetous. The appellants in the first appeal contend as well that the Trial Judge erred in finding that claims 6, 8 and 14 were infringed. Finally, they submit that the Trial Judge erred in allowing the respondents their costs of the '803 Patent proceedings in view of his finding that this patent was valid but not infringed.
ANALYSIS
Onus
[10] The appellants concede that by section 45 of the Patent Act,1 as it stood prior to October 1, 1989, an issued and subsisting patent is presumed to be valid during its full term of seventeen years commencing with the date of issue. They contend, however, that while the burden rests upon them to rebut this presumption the Trial Judge imposed a heavier onus than would normally rest on a defendant attacking the validity of a patent. At page 15 of his reasons for judgment, the Trial Judge noted that the '803 Patent was not attacked until some sixteen years after it issued and, therefore, that the "onus on the defendant to prove invalidity ought to be a heavy one because the patent has been honoured for so long as valid." He did not explicitly state that the appellants were under a similar onus in attacking the validity of the '734 Patent, which attack also came many years after the patent was issued. In any event, it seems to me that the Trial Judge was correct in stating at page 16 of his reasons that "the onus to prove the validity of a patent shifts to the patentee once the attacking party shows some evidence of invalidity, on the balance of probabilities", citing the decision of this Court in Tye-Sil Corp. Ltd. v. Diversified Products Corp. et al.2 I am not satisfied, therefore, that he did in fact apply a heavier onus than is normally to be applied in a case of this kind.
Double patenting
[11] The first substantive issue challenges the Trial Judge's conclusion that the '734 Patent was not invalid for double patenting of the same invention as was disclosed in either the '401 or '803 Patents. I have already described in general terms the inventions protected by both of those patents and have recited their first claims.
[12] The leading case in Canada on double patenting of the same invention is Commissioner of Patents v. Farbwerke Hoechst Aktiengsellschaft Vormals Meister Lucius & Bruning.3 That case involved the patenting by the applicant of an anti-diabetic medicine and an application by the same applicant to protect a second medicine which was no different from the first except that it contained an inert carrier. The first application was filed on June 5, 1956 and led to the issuance of a patent on September 1, 1959. In the meantime, on June 28, 1957 the applicant filed the second application. It was rejected by the Commissioner of Patents on January 13, 1960. One of the grounds for rejection was that the applicant was entitled only to one patent for an invention and that the invention sought to be protected by the second application did not inventively distinguish it from the product claims already granted. The Supreme Court upheld the Commissioner's decision, Judson J. stating:4
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A person is entitled to a patent for a new, useful and inventive medicinal substance but to dilute that new substance once its medical uses are established does not result in further invention. The diluted and undiluted substance are but two aspects of exactly the same invention. In this case, the addition of an inert carrier, which is a common expedient to increase bulk, and so facilitate measurement and administration, is nothing more than dilution and does not result in a further invention over and above that of the medicinal itself. If a patent subsists for the new medicinal substance, a separate patent cannot subsist for that substance merely diluted. |
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[Emphasis added]
[13] Cullen J. addressed double patenting in obiter because of his earlier determination that the invention disclosed in the '734 Patent was "entirely different" from the invention disclosed in either the '401 or the '803 Patents. He was of the view that the invention disclosed in the two earlier patents could not properly be compared with the one that was disclosed in the '734 Patent in determining whether the latter patent amounted to the double patenting of the same invention because neither the '401 nor the '803 Patent disclosed the presence of flexible vanes on the lower oscillating element.
[14] It was contended by the appellants that the claims of both the '401 and '803 Patents, by requiring "vanes" on the lower oscillating element of the inventions disclosed therein, did indeed include both fixed and flexible vanes and, accordingly, that the invention disclosed by the '734 Patent was the same as that of the first two in that the claims of the '734 Patent called for "flexible vanes" on the lower oscillating element. Cullen J. was not assisted by this argument. He construed the word "vanes" in the claims of the '401 and '803 Patents in the light of the expert evidence as importing only fixed and not flexible vanes. For that reason alone he concluded that the invention disclosed in the '734 Patent was different from that which was disclosed in either of the two earlier patents. Because the lower oscillating element of the appellants' washer required flexible vanes, the Trial Judge concluded that the appellants had not infringed the '803 Patent.
[15] That finding is not the subject of the present appeal which is limited to the validity and infringement of the '734 Patent. The respondents thus object to the appellants' attack on the finding. As the respondents put it in their written submission, by proceeding as they have the appellants seek now "to have their cake and eat it too". The appellants, they maintain, would have the decision of the learned Trial Judge as it relates to the construction of the '803 Patent altered so as to include within the scope of the '803 Patent flexible lower vanes in an attempt to bolster an argument for double patenting while at the same time not wishing to dispute the non-infringement finding of the Trial Judge. The respondents contend that such position amounts to a collateral attack on the finding of validity which is not directly attacked by way of appeal. In Wilson v. The Queen,5 McIntyre J. described a collateral attack as follows:
It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it , stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally - and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.
[16] In view of my conclusion that double patenting has not occurred in this case, it is not necessary to deal with this particular objection. Cullen J. found that the invention disclosed in the '734 Patent consisted of far more than the mere substituting of flexible vanes on the lower oscillating element. He described the essence of that invention at pages 47-8 of his reasons in the following terms:
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The essence of the invention is the unique wash system produced by the combination of flex vanes with dual action agitation. If a dual action agitator with flex vanes cannot be contemplated by the '401 or '803 patents, then, according to the evidence of the defendants' own witness, all three patents are distinct, and the defendants' argument about conterminousness fails. |
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[17] Of some importance to Cullen J. was that the invention disclosed in the '734 Patent solved the problem of clothes becoming tangled in the operation of dual action agitators. He acknowledged that clothes tangling was also a problem with a unitary action agitator but at page 39 of his reasons he found that this problem with dual action agitators was "qualitatively different". In his view,
...the tangling produced by dual action agitation is qualitatively different from that produced by unitary action agitation. This point is relevant to the discussion as it relates to the use of flex vanes to alleviate the special tangling problem produced by dual action agitation.
At page 40 he added the following:
The problem is tangling. The use of flex vanes with a lower skirt solves the problem of tangling in both kinds of agitators. However, the evidence is that the magnitude, and indeed the nature, of the problem in dual action agitators is greater and different than in single action agitators. In dual action agitation, the use of flex vanes provides the added bonus of improving the washability of large loads. Both of these features are highly desirable in a washing machine.
[18] In my respectful view, Cullen J. did not err in finding that the invention disclosed in '734 Patent was not the same as was disclosed in either the '401 or '803 Patents. Apart from the construction of the word "vanes" in the two earlier patents, the question was essentially one of fact. I can find no basis for interfering with this aspect of the judgment below.
[19] The appellants contend in the alternative that this is a case of double patenting nevertheless because the substituting of flexible vanes on the lower oscillating element of the '734 Patent was but an obvious variation or modification of what was already disclosed in the '401 and '803 Patents or in the prior art as it existed at the date of the invention in 1974.
[20] The appellants rely on Consolboard v. McMillan Bloedel (Saskatchewan) Ltd.6, Dickson J. (as he then was) after referring to the judgment in Farbwerke Hoechst, supra, as "the main authority on double patenting" added at the same page that the second process in that case "involved no novelty or ingenuity, and hence the second patent was unwarranted". The appellants therefore argue that in attacking the validity of a patent a defence of double patenting of the obvious kind may be raised as an alternative to a defence of double patenting of the same invention.
[21] Cullen J. in obiter was of the view that the inventions disclosed in either the '401 or '803 Patents could not be treated as "prior art" despite being listed as such in the '734 Patent. He stated:7
Section 10 of the old Patent Act stipulates that the contents of a patent come into the public domain only after the patent has issued. Due to the issuance dates of the three patents, the knowledge contained in the '401 and '803 Patents was in the public domain for just over two years before the '734 patent was issued. However, this knowledge was not in the public domain at the time of the actual invention disclosed in the '734 patent, which is at least as early as June 5, 1971. The general rule is that co-pending patent applications may not be cited as prior art against each other. The applications were co-pending. Therefore, it is the date of invention that counts when examining prior art. I conclude, therefore, that despite the able submission from counsel for the defendants, that the '401 and '803 patents are not prior art.
[22] I accept that the fundamental reasoning for permitting the defence of double patenting is to prevent an extension of the seventeen year monopoly a patent confers. In the case at bar the appellants contend that such an extension ought not to be permitted if it can be established that while a second patent may not disclose the exact same invention as the first the invention disclosed in the second is but an obvious variation or modification of the first.
[23] In my view, even if it could be said that Dickson J. laid down a second test for double patenting in Consolboard, supra, I am not persuaded that the Trial Judge erred in refusing to view the invention disclosed in the '734 Patent as an obvious variation or modification of one or other of the inventions in the two earlier dual action patents. As was stated by Hugessen J.A. in Beloit Canada Ltd. v. Valmet OY,8 for an invention to be "obvious" the "very difficult test to satisfy" is whether the notional technician skilled in the art would "in the light of the state of the art and of common general knowledge as at the claimed date of invention, have come directly and without difficulty to the solution taught by the patent".
[24] The Trial Judge made strong findings of non-obviousness. At pages 41-2 of his reasons, for example, he stated:
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The inventive step of adding flex vanes to the dual action agitator did not immediately occur to anybody at Whirlpool. The fact that it took six months to develop the idea is evidence of serious thought, research, or experimentation. It is not evidence of obviousness. The test of whether the notional skilled worker would have come, in light of what was known about dual action agitation at the time, and given common general knowledge, directly and without difficulty to the solution taught by the '734 patent simply is not satisfied on the basis of the defendants' evidence. I am satisfied that dual action agitation and unitary action agitation are such different creatures that the notional skilled technician would not have readily interchanged that art taught by one for that of the other. Only a hindsight analysis would lead me to believe otherwise. |
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The defendants bear the burden of tendering evidence that would tend, on a balance of probabilities, to prove obviousness. They have not done so. I thus conclude that the use of flex vanes on the dual action agitator was not obvious. |
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[Emphasis added]
Obviousness
[25] The appellants direct two alternative attacks on the validity of the '734 Patent. The first is that substituting flexible for inflexible vanes on the lower oscillating element of a dual action agitator was but an improvement that was not inventive because it was obvious. The second is that substituting flexible vanes for the inflexible vanes on the dual action agitators of the '401 or '803 Patents was not inventive because this too was obvious.
[26] As we have seen, the tests for obviousness is a difficult one to satisfy. It is unnecessary to repeat what I have already stated on this subject in the light of the Trial Judge's findings of fact. He had in evidence before him the prior art which formed the basis of the appellants' contention that the substituting of flexible vanes for inflexible ones was a mere obvious improvement over that which was already known and used in the prior art. Although it was argued that the inventions disclosed in the '401 and '803 Patents were prior art, the Trial Judge made it plain in his findings that the invention disclosed in the patent in suit was entirely different from either of the inventions disclosed in those earlier patents. In addition to those patents, the evidence included the Smith invention which was patented in the United States by Maytag during the 1960s. This invention incorporated a single unitary action agitator with flexible vanes. A second piece of prior art relied upon by the appellants was the invention disclosed in the Bochan patent. It too was a unitary action agitator which taught the use of flexible vanes on the lower oscillating portion of the agitator and a second means at the top to force clothes down to the bottom of the agitator.
[27] The Trial Judge also heard the testimony of three expert witnesses - Messrs. Warner and Pielemeier on behalf of the respondents and Mr. Mellinger on behalf of the appellants. His comments on the quality of assistance gained from these witnesses suggests that the evidence of none of them was found to be helpful in all respects. Although Mr. Mellinger's evidence was viewed as "enlightening and trustworthy" the Trial Judge noted at page 57 of his reasons, that Mr. Mellinger had "no experience with dual action agitators". Mr. Pielemeier on the other hand was found to have "had a lot" of experience with such agitators and was indeed involved in product development at the time of their invention. It is clear that his evidence played a pivotal role in the Trial Judge's finding that the defence based on obviousness had not been established to his satisfaction.
[28] In my view, the appellants in both appeals have failed to demonstrate that the Trial Judge erred in his assessment of the evidence or in his conclusion that the use of flexible vanes on the dual action agitators was not an obvious improvement to the existing art or that substituting such vanes for fixed vanes was obvious. I would not interfere with that conclusion.
Covetousness
[29] The final attack on the validity of the '734 Patent is that the invention disclosed in the patent is the improvement of substituting flexible vanes to an existing structure i.e. the fixed vanes of the '401 and '803 Patents. Whereas claims 12, 13 and 14 of the '734 Patent are limited to the improvement i.e. an agitator assembly with flexible vanes, the first eleven claims are not so limited and are therefore invalid as being broader than the invention. I can find no basis in law for interfering with the Trial Judge's view that the invention was not a mere improvement. As I have already indicated, the Trial Judge refused to view the invention as consisting only of the substituting of flexible vanes for fixed vanes on the lower oscillating element. Instead, he viewed as its "essence" "the unique wash system produced by the combination of flex vanes with dual action agitation". At page 36 of his reasons the Trial Judge stated that the combination of the upper auger element and lower vanes "combined for a unitary result". Later, at page 43, he explicitly found that "[t]he invention is not merely the substitution of flex for rigid vanes". These conclusions were largely the product of the Trial Judge's fact finding function with which we must not lightly interfere.
Infringement
[30] The appellants in this appeal then argued that the Trial Judge erred in failing to find that they are not guilty of infringing claims 6, 8 and 14 of the '734 Patent. These three claims variously called for a drive means which is constituted and arranged to "continuously drive" or "continuously rotate" the second or upper auger element. The only issues at trial were whether claims 6, 8 and 14 truly called for continuous drive and if so whether the appellants' product infringed those claims.
[31] The Trial Judge was of the view, as expressed at pages 29-30 of his reasons, that the respondents' argument about the motion of the upper element of their product went to the heart of the matter. In his view, "[i]t is not necessary to show that the drive in the medium or light load is strictly continuous" as long as "the movement is not sporadic" a motion which, he thought, may well have been contemplated to fall within the scope of the claims of the '734 Patent. To him the videotaped evidence (Exhibit P-8) demonstrated that the rotation of the upper element of the appellants' product was of this type. He interpreted the drive of the '734 Patent as "continuously and/or intermittently" rotating in one direction.
[32] I am in agreement with the conclusion of the Trial Judge that claims 6, 8 and 14 were infringed. The viewing of the videotaped evidence at the hearing of this appeal satisfied me that the motion of the upper element of the appellants' product while working under medium and light load conditions was continuous. I say so despite the Trial Judge's view that Mr. Werner's evidence on this aspect of the matter did "not make this point obvious" and therefore that the evidence was "ambiguous". In my view, however, the motion shown on the exhibit speaks for itself.
Costs
[33] The final issue concerns the decision of the Trial Judge to award costs to the respondents "on the basis of validity of the '803 and '734 patents and the infringement by the defendants" of the '734 Patent. The appellants contend that the respondents ought not to have been awarded costs of the '803 Patent proceedings because of the Trial Judge's finding that the appellants had not infringed that patent.
[34] Subsequent to the pronouncement of the judgment under appeal, the appellants were unsuccessful in persuading the Trial Judge to reconsider this aspect of the judgment pursuant to former Rule 337. In support of their motion under that Rule, the appellants filed affidavit evidence to the effect that on March 7, 1997 the appellants made an offer in writing to settle the claimed infringement of the '803 Patent pursuant to "the Rules of the Federal Court".9 The offer was to pay the respondents the sum of U.S. $250,000 in exchange for a release of the appellants "from any liability in respect" of that patent and the discontinuance by the respondents of the action in respect of the '803 Patent, without costs.
[35] Former Rule 344.1(2) reads as follows:
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(2) Unless otherwise ordered, where the defendant makes an offer to settle which has not been revoked, and the plaintiff, |
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(a) fails to obtain a judgment more favourable than the terms of the offer to settle, the plaintiff shall be entitled to party and party costs to the date of service of the offer and the defendant shall be entitled to double such costs, excluding disbursements, from the date of such service to the date of judgment; or |
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| (b) fails to obtain judgment, the defendant shall be entitled to party and party costs to the date of the service of the offer and to double such costs, excluding disbursements, from the date of such service to the date of judgment. |
[36] In my view, Rule 344.1(2) retains a measure of discretion in a Trial Judge in awarding costs. In the present case, the respondents did obtain a judgment that may be viewed as more favourable than what was contained in the written offer of March 7,1997. The declaration of validity allows the respondents, if need be, to raise that judgment against other would-be infringers of the '803 Patent. I am of the view, therefore, that this Court should not interfere with this aspect of the judgment.
[37] I would dismiss the appeal with costs. I would dispose of the second appeal in the same manner for the foregoing reasons to the extent that they are applicable to the issues raised in that appeal. A copy of these reasons shall be filed in Court File No. A-676-97 and upon filing shall become reasons for judgment in that matter.
"A.J. Stone"
J.A.
"I agree.
Gilles Létourneau, J.A."
"I agree.
J. Edgar Sexton, J.A."
Date: 19990122
Docket: A-630-97
CORAM: STONE J.A.
LÉTOURNEAU J.A.
SEXTON J.A.
BETWEEN:
CAMCO INC. and
GENERAL ELECTRIC COMPANY
Appellants
(Defendants)
- and -
WHIRLPOOL CORPORATION and
INGLIS LIMITED
Respondents
(Plaintiffs)
Heard at Toronto, Ontario, on Monday, December 14, Tuesday, December 15 and Wednesday, December 16, 1998.
Judgment rendered at Ottawa, Ontario, on Friday, January 22, 1999.
REASONS FOR JUDGMENT BY: STONE J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
SEXTON J.A.
IN THE FEDERAL COURT OF APPEAL
Date: 19990122
Docket: A-630-97
BETWEEN:
CAMCO INC. and
GENERAL ELECTRIC COMPANY
Appellants
(Defendants)
- and -
WHIRLPOOL CORPORATION and
INGLIS LIMITED
Respondents
(Plaintiffs)
REASONS FOR JUDGMENT
__________________
1 R.S.C. 1985, c. P-4.
2 (1991), 35 C.P.R. (3d) 350, at pages 357-58.
3 [1964] S.C.R. 49">[1964] S.C.R. 49
4 At page 53.
5 [1983] 2 S.C.R. 594">[1983] 2 S.C.R. 594 at page 599. See also R. v. Meltzer, [1989] 1 S.C.R. 1764, R. v. Garofoli, [1990] 2 S.C.R. 1421, Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 and R. v. Litchfield, [1993] 4 S.C.R. 333.
6 [1981] 1 S.C.R. 504">[1981] 1 S.C.R. 504, at page 536.
7 At page 48 of his reasons.
8 (1986), 8 C.P.R. (3d) 289 (F.C.A.), at page 294.
9 Strictly speaking, former Rule 337(5) would not appear to be applicable in that the case involves neither a pronouncement not according with the reasons nor a matter that was overlooked or accidentally omitted. This is so because the offer of March 7, 1998 by its own terms expired at the conclusion of the trial and was quite unknown to the Trial Judge before the motion for reconsideration was filed. The provisions of former Rule 1733 may possibly be seen as covering a situation of the kind facing the appellants once they become aware of the costs disposition in the judgement under appeal. That Rule permitted a variation of a judgment "upon the ground of matter arising subsequent to the making thereof or subsequently discovered". It would seem at least arguable that as the offer to settle went out of effect at the conclusion of the trial and as it was unknown to the Trial Judge at the time his judgment was rendered it became a "matter" to which Rule 1733 applied. Nothing turns on the point in this appeal. However, counsel for the appellants suggested that the Court use this opportunity to offer some general guidance of the appropriate procedure to be adopted.
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