Majority
British Columbia (1) reversing the judgment of Hunter C.J. and granting an order appointing an arbitrator and another order staying all proceeding in an action on a fire insurance policy pending the arbitration.
L. G. McPhillips K.C. for the appellant.
C. W. Craig K.C. for the respondent.
At the conclusion of argument by counsel, the judgment of the court was orally delivered by
J.-If, as the appellant alleges, the respondent company did elect to take advantage of the re-instatement clause in the policy, then, the appellant, having asserted his right to enforce the company's obligation to re-instate, would have no right to indemnity, pursuant to the proofs of loss; and the arbitration clause would never come into play.
The company therefore was not entitled to a stay of proceedings under the Arbitration Act until it had been determined that there had been no election.
If, on the contrary, there was no election, there was no reason for refusing the application of the respondent for an order for the appointment of an arbitrator or a stay of proceedings.
Therefore the judgment of the Court of Appeal, as well as the orders made on the respondent company's two applications, should be set aside.
The dispute as to the alleged election could be decided on the hearing of the company's application for a stay, if both parties should so desire; but if they do not agree upon that course, then upon delivery of the statement of defence, an issue should be directed to determine that dispute. If the issue be decided in favour of the appellant, the action should proceed for the disposition of the claim for damages; and, if otherwise, further proceedings in the action should be stayed, and the arbitration proceeded with. Meantime, the applications for a stay and for the appointment of an arbitrator should be kept on foot.
The appellant should have the costs of the present J.
appeal and the respondent those of the appeal to the Court of Appeal.
The costs already incurred are quite disproportionate to the importance of the matters in dispute, and it is hoped that all parties will concur in a serious effort to avoid waste of time and energy in barren quarrels about questions of practice, and to have the questions of substance disposed of as speedily and inexpensively as possible. Solicitors for the appellant: McPhillips & Duncan. Solicitors for the respondent: Walsh, McKim, Housser & Molson.
GUETTLER v. CANADIAN INTERNATIONAL PAPER COMPANY
Patent-Invalidity-No APPEAL by the plaintiffs from the judgment of Maclean J., President of the Exchequer Court of Canada (1), dismissing the plaintiffs' action for infringement of patent, on the ground of invalidity of the patent. The appeal was dismissed with costs.
The patent. in question was for alleged improvements in a barking drum used for stripping logs in the making pulp, the improvements consisting of devices for effecting the required tumbling action, constructed in such a way as to avoid the brooming or splintering of the ends of the logs which is liable to occur when tumbling devices of the usual character are employed.
Judgment of the Court
Duff J. After referring to the appellants' claims in support of the patent, he said:
"The sole question on the appeal concerns the validity of the appellant's patent; and that reduces itself to the question, which is a question, of fact: Have the respondents established the proposition on which their case in the court below was rested that the subject matter of the appellant's patent does not disclose invention?"
He then discussed the subject of the patent, and the claims in regard to it, and discussed a number of earlier patents obtained by others, and concluded as follows: "c* * * It does not seem to be seriously doubtful that Alfsen, Ross, Hussey and Paulson had all conceived and disclosed the idea of a rigid drum composed, in its longitudinal elements, of iron bars so arranged as to lift the pieces of wood, tumble them over one another in such a way as to remove the bark without seriously injuring the wood; nor does it appear to be doubtful that both Ross and Hussey definitely conceived and disclosed the idea of inwardly projecting parts, or that Ross conceived the notion of rounding the projections in order to avoid the brooming and splintering of the logs.
Furthermore, in both the Wertheim and the Ehrler patents, the use of the U bar is suggested and disclosed for purposes which, if not in all respects identical with the purposes sought to be obtained by the appellant, were so analogous as to make it impossible to ascribe to his adoption or adaptation of the idea, the character of patentable invention. Nor can it be disputed that Paulson effectively embodied his ideas in a barking machine, which has had a considerable degree of commercial success.
" Mr. Anglin, in his elaborate argument, urged upon us, properly enough, the degree of commercial success which had been achieved by Guettler's drum.
Commercial success may be due to many factors, and the learned trial judge was not satisfied that Guettler's drum is more efficient than Paulson's. The evidence of commercial success cannot afford a basis for refusing to give effect to the conclusion necessitated, I think, by the recital itself of the facts already mentioned, that Guettler's improvements were not S.C.R.