November 23, 2021
In Munchkin, Inc. v Angelcare Canada Inc., 2021 FCA 169, the Federal Court of Appeal (“FCA”) recently dismissed a motion to quash an appeal as being premature and outside the court’s jurisdiction, which was brought by Angelcare Canada Inc., Edgewell Personal Care Canada ULC and Playtex Products, LLC (together, the “Respondents”).
In its reasons, the FCA emphasized the high threshold for quashing an appeal, and noted that it was not prepared to conclude that the appeal had no reasonable chance of success and was clearly bound to fail.
Lower Court Decision
The current appeal concerned an order that dismissed a motion by Munchkin, Inc. and Munchkin Baby Canada, Ltd. (together, the “Appellants”) to exclude certain testimony in a lengthy patent infringement trial.
The Appellants filed a notice of appeal prior to the end of the trial, for which a final judgment has yet to be issued. In response, the respondents filed a notice of appearance. Due to delays related to the COVID-19 pandemics, the appellants then later filed an agreement as to the contents of the appeal book.
Throughout this time, the Respondents made it clear that their position was that the Court could not entertain an appeal separate from the trial judgment, and suggested that the parties agree to request a stay of the appeal pending the trial judgment. Further, the Respondents made it clear that, if that failed, they would move to quash the appeal. The Appellants disagreed, which led to the present motion to quash the appeal.
Preliminary Issue: Filing of Reply Evidence
In their reply evidence, the Respondents filed an affidavit reproducing an email chain, which indicated that they did not renounce their right to bring the present motion to quash when they agreed to the contents of the appeal book. The Respondents argued that the email chain should be admitted as it was necessary to respond to the Appellants’ suggestion to the contrary.
The Appellants argued that the affidavit should not be admitted on the basis that: (i) it was not required to decide the motion; (ii) it was duplicative of the Respondents’ evidence in chief; and (iii) the Respondents had improperly split their case.
Ultimately, the FCA determined that the interests of justice favoured admitting the reply evidence. Its admission would not result in substantial or serious prejudice to the Appellants, and it was necessary to demonstrate that the Respondents continually intended to quash the appeal.
Jurisdiction to hear appeals from mid-trial evidentiary rulings
The Respondents’ arguments regarding prematurity and jurisdiction were based on the FCA’s decision in Saint John Shipbuilding & Dry Dock Co. Ltd. v Kingsland Maritime Corp,  1 FC 523 (“Saint John”), where the FCA enunciated the general principle that evidentiary rulings made by the trial judge during the course of the trial cannot form the subject matter for appeals until the trial judgment is made. In Saint John, the FCA relied on the fact that the mid-trial evidentiary ruling was neither a final judgment nor an interlocutory judgment — i.e., not a formal order — in determining that the appeal must be quashed due to lack of jurisdiction.
The distinction drawn by the Appellants between oral and written orders was inconsequential
In their opposition to the present motion, the Appellants relied on the distinction between written and oral orders. However, the FCA determined that this distinction was unimportant. In addition, the Appellants distinguished Saint John on the basis that it relates to trial decisions made under a previous version of the Rules, an argument which was also dismissed by the FCA.
Lastly, the Appellants argued that a later decision noted that the principle from Saint John was a “general rule”, and was not followed in the “very unusual circumstances” of that case. The FCA determined that it could not rule out whether or not exceptional circumstances exist in this case to permit departure from the principle in Saint John. This determination, combined with the high threshold for quashing an appeal, ultimately resulted in the FCA dismissing the Respondents’ motion to quash the appeal.
In addition to dismissing the Respondents’ motion to quash the appeal, the FCA noted that the Respondents did not request the alternative relief of a stay of the appeals pending the trial judgment and requested that the parties make submissions on the issue.
Authors: Mark Leonard and Farrah Kudus