Motion for a Stay by a Statutory Authority Requires Factual Evidence
Commissioner of Patents (AG Canada) v. Sydnet H. Belzberg  2009 FCA 275 (Sharlow J.A.)

September 25, 2009

Jacquline Dais-Visca for the Appellant, Commissioner of Patents (“Commissioner”)
Fraser D. Rowand, Paul V. Lomic and Jeff M. Tracey for the Respondent, Sydnet H. Belzberg (“Belzberg”)

The Commissioner moved for a stay of the order of Justice Simpson, that directed the Commissioner to make a decision granting Belzberg’s Patent Application, pending disposition of the appeal.

The Crown, acting on behalf of the Commissioner, brought the motion for a stay with a request that it be decided at an oral hearing. Justice Trudel rejected the request for an oral hearing and ordered the Commissioner to file an affidavit supporting its motion, as required by Rule 364(2)(c) of the Federal Courts Rules. The Crown elected not to file an affidavit, and instead sent a letter stating that it based its motion upon the public interest, the applicable legislation and the decision under appeal.

The Court of Appeal dismissed the motion for a stay on the ground that the Crown failed to comply with the order of Justice Trudel. The Court of Appeal also noted that requesting a stay on the basis of public interest required some factual evidence to support the Crown’s submission that “the consequence of not granting a stay pending appeal will be confusion, additional delay, and inconsistency in the processing of patent applications in what is already a very litigious area of the law.”

The motion for a stay by the Commissioner was dismissed with solicitor and client costs payable by the Attorney General of Canada in any event of the cause.

By: Etienne de Villiers, Dimock Stratton LLP