Date: 20030808
Docket: T-635-02
Citation: 2003 FC 959
Ottawa, Ontario, Friday, this 8th day of August, 2003.
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
IN THE MATTER OF Section 56 of the Trade-marks Act, R.S.C. 1985, c. T-13
AND IN THE MATTER of an Appeal from a Decision of the Registrar of Trade-marks dated February 18, 2002 refusing the application for registration of Application No. 811,982 for the trade-mark NOSE Design
BETWEEN:
SARASIN CONSULTADORIA E. SERVICOS LDA
Appellant
- and -
ROOX'S INC.
Respondent
- and -
THE REGISTRAR OF TRADE-MARKS
REASONS FOR ORDER AND ORDER
TABIB P.
[1] According to the Respondent, what distinguishes the Appellant's motion for an extension of time from other such motions is the existence of a previous order of Prothonotary Lafrenière, directing that the appeal proceed in "strict" accordance with the time requirements of the Rules of this Court. It is the Respondent's position that as this order does not fix a period of time, but mandates adherence to the Rules, it has removed this proceeding from the ambit of Rule 8 of the Federal Court Rules, 1998, so that it is no longer open to the Court to extend or abridge the time periods other than through an appeal of Prothonotary Lafrenière's order or a reconsideration, setting aside or variance of the order pursuant to Rules 397 or 399. The Respondent has been unable to refer me to any case law supporting his position.
[2] It is clear that the part of the order of Prothonotary Lafrenière ordering the parties to follow strictly the time requirements provided by the Federal Court Rules, 1998 is no more than an order fixing a time period, to which Rule 8 applies. Whether a time period fixed by an order is expressed in terms of a number of days, a specific date, or reference to the Federal Court Rules, 1998, it remains subject to the application of Rule 8. The Court of Appeal, in Canadian National Railway Company v. the "Norango" (1976) 2 F.C. 264, made it clear that no judge might fetter himself or herself or any other judge by making an order in a mandatory way (at page 268). The Court of Appeal in Espinoza v. Canada (Minister of Employment and Immigration) [1992] F.C.J. No. 437 again stated: "An order extending time does not finally dispose of any matter and issue and is always opened to reconsideration whether made peremptorily or not."
[3] It is true, however, that when considering an extension of time set by a peremptory or "unless" order, the Court should be cautious in exercising its discretion to relieve a party from the consequences of a breach of a Court order. The kind of justification required to excuse the delay is set at a very high level, including a double-barrelled test that the party "clearly demonstrate that there was no intention to ignore or flaunt the order and that the failure to obey was due to "extraneous circumstances"." (Angloflora Limited v. K. Van Bourgondien & Sons Inc., 2002 FCT 1230). But is the order of Prothonotary Lafrenière a peremptory order? I do not think so.
[4] The motion before Prothonotary Lafrenière was a motion to strike the affidavit filed in support of the Appellant's appeal by reason of the Appellant's failure to reasonably cooperate in making the affiant available for cross-examination. Instead of striking the affidavit, Prothonotary Lafrenière ordered the affiant to appear for cross-examination at a fixed date, "failing which his affidavit will be struck", ordered the proceeding to continue as specially managed proceeding and ordered that "the appeal shall proceed in strict accordance with all time requirements as outlined in Federal Court Rules, 1998". Having used words indicative of a peremptory order in relation to the attendance of the affiant for cross-examination, it seems clear that any intention the Court would have had of making the time requirements peremptory would have used equally clear language. I therefore do not interpret the order of Prothonotary Lafrenière setting out the schedule for further steps in the proceedings to be in the nature of a peremptory order. Nevertheless, the language used is indicative that the Court felt that the time allowed under the Rules was sufficient, and that any delay caused by lack of cooperation of the Appellant should not lightly be excused in subsequent interlocutory matters.
[5] In considering the Appellant's motion for an extension of time to file its application record, I have therefore considered the four part test set out in Canada v. Hennelly (1999), 244 N.R. 399, taking into particular consideration that the Appellant's justification for the delay should not involve a plea that insufficient time was allowed by the Rules, or a lack of cooperation on the part of the Appellant or its counsel.
[6] The justification invoked by the Appellant was the inadvertent failure of Appellant's counsel to enter the date for service and filing of the Appellant's record in their diary system, arising from the fact that three solicitors of the firm were involved in the file, each expecting the other to have entered the relevant date in the diary system. The Respondent referred to those circumstances as an "excuse" rather than a reason, implying that the failure to enter the diary date was invented or seized upon by the Appellant's counsel to cover up the true reason for the delay. The Respondent complained that the affidavit tendered by the Appellant in support its motion was sworn by a law clerk on information and belief only, depriving the Respondent from the opportunity of meaningful cross-examination and that the affidavit should be given little or no weight.
[7] The Respondent did not attempt to cross-examine the affiant. Whilst it is true that cross-examining an affiant on information and belief evidence is a poor substitute from cross-examining a witness with first-hand knowledge, I do not accept that it must always be deemed to be a futile or meaningless exercise such that the Court should give almost no weight to affidavits on information and belief on contested matters where cross-examination has not even been attempted. More particularly, when a law clerk deposes as to instructions and information given by the solicitors instructing him or her concerning the conduct of the proceeding, the grounds for the affiant's belief are sufficiently stated and ought to be considered sufficient unless the circumstances or cross-examination indicate otherwise.
[8] I am therefore satisfied that the reason invoked by the Appellant for its delay has been satisfactorily established, that an inadvertent diary error is an acceptable justification for the delay in the circumstances of this case, that the Appellant has demonstrated a continuing intention to proceed with this proceeding, that the record reveals that the Appellant has a reasonable cause of action, and that no prejudice would be caused to the Respondent from the forty or so days delay between the time the Appellant's record was due and the time it first moved for an extension of time. The Appellant's motion will therefore be granted.
[9] As regards costs, the Respondent has not convinced me that there is anything reprehensible, scandalous or outrageous in the conduct of the Appellant or its solicitors so as to justify an award of solicitor/client costs. Following Rule 410(2), the costs of this motion for an extension of time will be borne by the party bringing the motion. The costs of the Appellant's initial motion, subsequently withdrawn, shall be paid as an uncontested motion while the costs of the present motion will be paid as a contested motion.
IT IS ORDERED THAT:
1. The time within which the Appellant is to serve and file its application record is extended to August 12, 2003.
2. Costs, on a party and party basis, of the previous motion of the Appellant dated April 7, 2003 as an uncontested motion and of this contested motion, payable by the Appellant.
"Mireille Tabib"
Prothonotary
FEDERAL COURT
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-635-02
Sarasin Consultadoria E.Servicos
LDA v. Roox's Inc.
STYLE OF CAUSE:
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 7, 2003
REASONS FOR JUDGMENT: Mireille Tabib, Prothonotary
DATED: August 8, 2003
APPEARANCES:
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Bruce Morgan
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FOR THE APPELLANT/
APPLICANT
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Kenneth D. McKay
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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