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Appeals - Cross-Appeals. Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC
In Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC (Fed CA, 2024) the Federal Court of Appeal denied that a cross-appeal is required, here considering the "real-life, practical consequences" dicta of Stratas JA from Canada (Citizenship and Immigration) v. Canadian Council for Refugees (Fed CA, 2021):[8] .... A cross-appeal is only required if a different disposition is sought (Hilton, at para. 12) or if the alternative position would lead to a different judgment (Canada v. Jim Shot Both Sides, 2022 FCA 20, at para. 40 [JSBS]).
[9] The appellant submits that a "“different disposition”" means the cross-appealing party will receive remedial "“real-life, practical consequences”". In the instant case, those practical consequences would be that it would have the benefit of appellate review of Federal Court’s decision on the motion. This argument fails.
[10] This is a misreading of Stratas J.A.’s characterization of "“real-life, practical consequences”", which relate to differences in the order, not its reasons (Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, at paras. 12, 14 [Refugees]). Here, there are no consequences which required a cross-appeal. The respondent was successful in Federal Court and has no interest in disturbing that outcome. It is precisely because Hershey challenges part of the reasoning and not the judgment, that the cross-appeal is improper (Refugees, at paras 12, 14). . Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC
In Promotion in Motion, Inc. v. Hershey Chocolate & Confectionery LLC (Fed CA, 2024) the Federal Court of Appeal usefully cites circumstances in which a cross-appeal may be called for:Note that in this case the dispute was as to whether a cross-appeal was necessary where the potential cross-appellant was successful on the final order at trial. If the other side was successful in the main appeal the issue then may have become relevant (fresh evidence). [7] It is trite law that an appeal lies from the order or judgment of a court, not from the reasons given (J. Sopinka, M.A. Gelowitz & W.D. Rankin, Conduct of an Appeal, 5th ed. Toronto: LexisNexis, 2022, at 30 [Sopinka]). In most cases, if the reasons are right, it is likely that the judgment is correct. However, circumstances arise where the judgment is correct, but for the wrong reasons (Breslaw v. Canada (Attorney General), 2005 FCA 152).
[8] Consistent with this basic rule, where a court order or judgment is favourable to a party, it is not required to file a cross-appeal unless it seeks a different disposition of the final [SS: italics mine] judgment (Miller Thomson LLP v. Hilton Worldwide Holding LLP, 2019 FCA 156 [Hilton]). Rule 341(1)(b) of the Federal Courts Rules, S.O.R./98-106 (FCR), on filing cross-appeals, reflects the well-established jurisprudence in this regard. Nor is a cross-appeal required where a party advances alternative arguments to sustain a decision. A cross-appeal is only required if a different disposition is sought (Hilton, at para. 12) or if the alternative position would lead to a different judgment (Canada v. Jim Shot Both Sides, 2022 FCA 20, at para. 40 [JSBS]).
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[13] To conclude, a respondent on an appeal which disagrees with a judge’s treatment of the evidence need not file a cross-appeal unless it is seeking a different disposition of the final order (Berenguer v. SATA Internacional – Azores Airlines, at paras 10-11).
[14] By appealing the Federal Court’s judgment, PIM opened the door for the respondent to advance additional arguments or reasons in support of the judgment appealed from (Kligman v. M.N.R. (C.A.), 2004 FCA 152). That said, the ability of the respondent to do so is not unrestrained. A respondent cannot leverage or exploit its discretion to "“unwind”" other aspects of the judgment for which a notice of cross-appeal ought to have been filed (JSBS, at para 54).
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[18] In light of this, it is fair to conclude that Hershey does not seek to raise a new argument on appeal nor seek a different disposition of the Federal Court’s judgment; nor does it overreach to unravel other aspects of the judgment unrelated to the question of the admissibility of the fresh evidence. There is likewise no collateral attack, contrary to PIM’s contention. The ruling on admissibility was subsumed in the Federal Court’s reasons for judgment and may be challenged in Hershey’s responding memorandum. There is nothing collateral or indirect about this.
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