PEAK INNOVATIONS INC. Appellant v. SIMPSON STRONG-TIE COMPANY, INC., 2011 FCA 81

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale 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​ J.A. 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 : Paul Smith FOR THE APPELLANT No one appeared FOR THE RESPONDENT SOLICITORS OF RECORD : SMITHS IP Vancouver , British Columbia FOR THE APPELLANT Sim, Lowman, Ashton & McKay LLP Toronto, Ontario FOR THE RESPONDENT