Federal Court of Appeal Decisions

Date: 20110302

Docket: A-368-10

Citation: 2011 FCA 81

CORAM:       EVANS J.A.

                        DAWSON J.A.

                        LAYDEN-STEVENSON J.A.

BETWEEN:

PEAK INNOVATIONS INC.

Appellant

and

SIMPSON STRONG-TIE COMPANY, INC.

Respondent

Heard at Vancouver, British Columbia, on March 2, 2011.

Judgment delivered from the Bench at Vancouver, British Columbia, on March 2, 2011.

REASONS FOR JUDGMENT OF THE COURT BY:                                       LAYDEN-STEVENSON J.A.

Date: 20110302

Docket: A-368-10

Citation: 2011 FCA 81

CORAM:       EVANS J.A.

                        DAWSON J.A.

                        LAYDEN-STEVENSON J.A.

BETWEEN:

PEAK INNOVATIONS INC.

Appellant

and

SIMPSON STRONG-TIE COMPANY, INC.

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Vancouver, British Columbia, on March 2, 2011)

LAYDEN-STEVENSON J.A.

[1]               This is an appeal of the order of Justice Beaudry of the Federal Court dated September 9, 2010, dismissing an appeal from a direction of Prothonotary Aalto directing that the appellant’s motion is premature and “stayed pending the outcome of the appeals in Federal Court of Appeal File numbers A-512-09 and A-513-09.”

[2]               We are of the view that the appeal ought not to have been entertained in the first instance. The jurisprudence of this Court is well settled. No appeal lies from a direction: Froom v. The Queen 2003 FCA 141. It follows that, in the circumstances of this matter, no costs ought to have been awarded against the appellant.

[3]               We are also of the view that the appellant’s motion is now ripe for hearing since the appeals upon which the motion was stayed were decided on October 20, 2010.

[4]               We would add that, in circumstances where counsel is uncertain regarding, or wishes to challenge, the nature of a direction arising from a case management conference, counsel is at liberty to request, on motion, a formal order which sets out the substance of the direction.

[5]               The appeal will be allowed to the extent of the costs. The order of the judge with respect to costs will be set aside.

                                                                                                            “Carolyn Layden-Stevenson”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                            A-368-10

STYLE OF CAUSE:                                            PEAK INNOVATIONS INC. v.

                                                                              SIMPSON STRONG-TIE COMPANY, INC.

PLACE OF HEARING:                                      Vancouver, British Columbia

DATE OF HEARING:                                        March 2, 2011

REASONS FOR JUDGMENT                          EVANS J.A.

OF THE COURT BY:                                         DAWSON J.A.

                                                                              LAYDEN-STEVENSON J.A.

DELIVERED FROM THE BENCH BY:          LAYDEN-STEVENSON J.A.

APPEARANCES:

SOLICITORS OF RECORD: