Stone
J.A.:
Reasons
for
Order:
The
order
which
the
Appellant
wishes,
by
its
motion
filed
September
19,
1996,
to
have
added
to
the
case
on
appeal
together
with
related
documentation
for
the
purpose
of
attacking
the
correctness
of
that
order,
was
pronounced
by
the
Trial
Judge
on
September
30,
1993
after
the
opening
of
the
trial
and
was
in
respect
of
a
motion
made
returnable
at
the
commencement
of
the
trial
for
the
purpose
of
placing
the
burden
of
proof
as
to
an
aspect
of
the
case
upon
the
Respondent.
Judgment
at
trial
was
pronounced
on
February
4,
1994.
Notwithstanding
that
the
order
in
question
may
be
viewed
as
a
procedural
ruling
(Saint
John
Shipbuilding
&
Dry
Dock
Co.
v.
Kingsland
Maritime
Corp.,
[1979]
1
F.C.
523
(C.A.);
Farmer
Construction
Limited
v.
R.
(1983),
83
D.T.C.
5272,
48
N.R.
315
(Fed.C.A.))
and
that
an
appeal
from
such
a
ruling
must
await
the
disposal
of
the
action
on
the
merits
(Lubrizol
Corp.
v.
Imperial
Oil
Ltd.
(1994),
55
C.P.R.
(3d)
141
(Fed.C.A.)),
because
the
motion
was
disposed
of
by
way
of
a
formal
order
pronounced
pursuant
to
Rule
337
it
cannot
be
appealed
against
either
directly
or
indirectly
unless
the
Court
first
grants
an
extension
of
time
pursuant
to
the
authority
conferred
by
subparagraph
27(2)(a)
of
the
Federal
Court
Act.
No
extension
of
time
having
been
granted,
it
follows
that
no
appeal
from
the
order
of
September
30,
1993
is
pending
in
this
matter
and,
accordingly,
that
the
within
motion
to
add
that
order
and
related
material
to
the
case
on
appeal
must
be
dismissed.
Motion
dismissed.
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