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Anticipated Appeals Cannot Be United

In Cooperstock v. United Airlines, Inc., the Court of Appeal held that an appeal can be stayed or consolidated with related appeals only after those related appeals have been commenced and are pending before the Court. .

Dr. Cooperstock owns and previously operated a consumer criticism website about United Airlines,  www.untied.com. In June 2017, the Federal Court held that the website infringed the trademarks and copyright of United Airlines since it substantially copied United Airlines’ logos and designs. The parties provided submissions on the terms of the injunction and on costs, but decisions in both matters remain under reserve.

Dr. Cooperstock appealed and, citing Westco v. Nadeau Poultry Farm, later moved for an order staying or consolidating the appeal “with the anticipated appeals of the Injunction Order and/or the Costs Order.” He asserted that the three appeals flowed from the same factual background and trial, that it would be inefficient to require three panels of the Court to deal with them separately, and that the appeals could affect each other.

Justice Laskin dismissed the motion, ruling that the order was not in the interest of justice. The request was speculative since only one appeal was pending before the Court. There was, as yet, no injunction order or costs order (and thus no appeals therefrom).

The statutory provisions, including rule 3 and rule 8 of the Federal Court Rules and section 50 of the Federal Courts Act are not “intended to operate in such a speculative context.” Similarly, the Court could not order consolidation of the appeals because rule 105, which authorizes consolidation, operates only “in respect of two or more proceedings” and there was only one proceeding. Jurisprudence supported staying the future appeals “if and when they are commenced” but not staying the present appeal as requested.

The Court noted that the decision does not preclude a future motion for a stay, consolidation or hearing together if and when one or more appeals from the injunction order and costs order are commenced.

A copy of the decision can be found here.