La-Z-Boy Canada Ltd. v. Morgan (Allan) and Sons Ltd., 2004 FCA 368

• Judge: Rothstein, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 28, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2004 FCA 368;(2004), 327 N.R. 353 (FCA)

La-Z-Boy Can. Ltd. v. Morgan & Sons (2004), 327 N.R. 353 (FCA)

MLB headnote and full text

Temp. Cite: [2004] N.R. TBEd. NO.026

La-Z-Boy Canada Ltd. (appellant/respondent) v. Allan Morgan and Sons Ltd. (respondent/applicant)

(A-115-04; 2004 FCA 368)

Indexed As: La-Z-Boy Canada Ltd. v. Morgan (Allan) and Sons Ltd.

Federal Court of Appeal

Rothstein, J.A.

October 28, 2004.

Summary:

The Competition Tribunal granted leave to Allan Morgan and Sons Ltd. (Morgan) to bring a private application to the Tribunal against La-Z-Boy Canada Ltd. based on s. 75 of the Competition Act, which established the restrictive trade practice of refusal to deal. La-Z-Boy filed a Notice of Appeal from the Tribunal's order 27 days after it was pronounced. Morgan moved to amend its Memorandum of Fact and Law to include an argument that La-Z-Boy had filed its Notice of Appeal out of time. La-Z-Boy brought a cross-motion to extend the time to file its Notice of Appeal. At issue was whether La-Z-Boy had to file its Notice of Appeal within the 10 day time period stipu­lated in s. 27(2)(a) of the Federal Court Act for an appeal from an interlocutory judgment and, if so, whether the court should grant the requested extension of time.

The Federal Court of Appeal, per Roth­stein, J.A., held that the Tribunal's order was interlocutory in nature and La-Z-Boy's No­tice of Appeal was therefore filed out of time. However, the court granted La-Z-Boy's application for an extension of time to file its Notice of Appeal. Morgan's motion to amend its Memorandum of Fact and Law was dismissed as moot.

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What consti­tutes - [See Practice - Topic 9002 ].

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The Competition Tribunal granted leave to Allan Morgan and Sons Ltd. (Morgan) to bring a private application to the Tribu­nal against La-Z-Boy Canada Ltd. based on s. 75 of the Competition Act, which es­tablished the restrictive trade practice of refusal to deal - La-Z-Boy filed a Notice of Appeal from the Tribunal's order 27 days after it was pronounced - The Federal Court of Appeal, per Rothstein, J.A., held that the Tribunal's order granting leave to Morgan was interlocutory in nature be­cause it did not determine the substan­tive rights of the parties - The 10 day time period stipulated in s. 27(2)(a) of the Fed­eral Court Act for filing a Notice of Ap­peal from an interlocutory judgment there­fore applied and La-Z-Boy's Notice of Ap­peal was filed out of time - However, the court granted La-Z-Boy's application for an extension of time to file its Notice of Appeal - La-Z-Boy had a continuing inten­tion to appeal, there were special cir­cum­stances explaining the delay and there was merit to the appeal - While Morgan argued it would be prejudiced by the unre­cover­able costs of the appeal, that was not the prejudice that needed to be shown when re­sisting an application to extend time - The relevant prejudice had to result from the granting of the extension.

Trade Regulation - Topic 722

Competition - Unfair competition - Restric­tive trade practices - Leave to bring appli­cation - [See Practice - Topic 9002 ].

Cases Noticed:

Kealey v. Canada et al. (1991), 139 N.R. 189 (F.C.A.), refd to. [para. 7].

Sim v. Canada (1996), 108 F.T.R. 291; 67 C.P.R.(3d) 334 (T.D. Protho.), refd to. [para. 9].

Karon Resources Inc. v. Minister of Na­tional Revenue (1994), 71 F.T.R. 232 (T.D.), refd to. [para. 9].

Symbol Technologies Canada ULC v. Bar­code Systems Inc. (2004), 327 N.R. 296; 2004 FCA 339, refd to. [para. 11].

Counsel:

Kristina Savi-Mascaro, for the appellant;

Deborah Hutchings, for the respondent.

Solicitors of Record:

Wilson Walker LLP, Windsor, Ontario, for the appellant;

McInnes Cooper, St. John's, Newfound­land and Labrador, for the respondent.

This cross-motion was heard on October 28, 2004, at Ottawa, Ontario, before Roth­stein, J.A., of the Federal Court of Appeal. The order of Rothstein, J.A., was delivered on October 28, 2004, and the following writ­ten reasons were delivered on November 1, 2004.