Date: 20030829
Docket: T-635-02
Citation: 2003 FC 1010
Ottawa, Ontario, this 29th day of August, 2003
Present: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
SARASIN CONSULTADORIA E. SERVICOS LDA
Applicant
- and -
ROOX'S INC. and
THE REGISTRAR OF TRADE-MARKS
Respondents
REASONS FOR ORDER AND ORDER
[1] Roox's Inc. appeal the Order of Prothonotary Tabib granting an extension of time to Sarasin Consultadoria E. Servicos LDA (Sarasin) pursuant to Rule 8 of the Federal Court Rules to allow them to file late their application record;
[2] There is no dispute that the standard of review to be applied is the one set out in Canada v. Aqua-Gem Investments Limited (C.A.), [1993] 2 F.C. 425, [1993] F.C.J. No. 103 (Q.L.) and the parties also agree that Prothonotary Tabib's decision dealt with a question vital to the final issue. I will therefore exercise my discretion de novo.
[3] The four elements that should be established by an applicant on a request for an extension of time are well known and are clearly set out in Canada (Attorney General) v. Hennelly, [1999] F.C.J. 846 (Q.L.), (1999) 244 N.R. 399 (C.A.).
[4] In that context, I am satisfied that Sarasin demonstrated a continued intention to pursue their appeal, that the application has some merit and that there is no real prejudice to the respondents arising from the delay. I find as a matter of fact that Sarasin failed to file their applicant record within the time set out in Rule 309 because their counsel through mis-communication between the three lawyers involved in the file who each thought that the other had done it, failed to enter the deadline for such filing in the firm's diary system. It is only when dealing with another procedural matter that Sarasin's counsel realised that they had missed the deadline. I am satisfied that this is an unexpected and unanticipated event and that Sarasin were diligent in filing their motion for an extension of time upon realizing their failure to file.
[5] In assessing whether this explanation of the delay is adequate to justify an extension, I have considered the terms of the Order of Prothonotary Lafrenière dated December 17, 2002 and the two decisions put forth by Roox's on this point that is Angloflora Ltd. v. Canada Maritime Ltd. 2002 FCT 1230, [2002] F.C.J. No. 1681 (Q.L.) and Tremblay v. Canada, [1999] F.C.J. No. 1660 (Q.L.).
[6] There is no doubt that when Prothonotary Lafrenière ordered the affiant to appear to be cross-examined by a certain date "failing which his affidavit would be struck", he made a peremptory or "unless order" of the type referred to in the Angloflora decision, supra. But I agree with Prothonotary Tabib that Prothonotary Lafrenière's order that thereafter "the appeal shall proceed in strict accordance with all time requirements as outlined in the Federal Court Rules (1998)", is not an "unless order" or peremptory order of the kind referred to in Angloflora supra.
[7] That being said, I am satisfied that in the present case, there was no intention to ignore or flout Prothonotary Lafrenière's order.
[8] Considering all the particular circumstances of this case and the need to do justice between the parties [Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (Q.L.)], I again agree with Prothonotary Tabib that the extension should be granted.
[9] This matter should now proceed as quickly as possible. However, in the circumstances, I extend the time set out in Rule 310 for the filing of the respondent record to September 4, 2003.
ORDER
THIS COURT ORDERS that:
1. The appeal is dismissed. No costs are awarded on this matter.
2. Roox's Inc. shall serve and file their respondent record on or before September 4, 2003.
"Johanne Gauthier"
Juge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-635-02
STYLE OF CAUSE:
SARASIN CONSULTADORIA E SERVICOS LDA For the Applicant
and
ROOX'S INC & THE RISTRAR OF TRADE MARKS
For the Respondents
DATE OF HEARING: AUGUST 25, 2003
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR JUDGMENT BY: GAUTHIER J
DATED: AUGUST 29, 2003
APPEARANCES BY: Mr.Bruce Morgan
For the Applicant
Mr. Kenneth McKay
For the Respondents
SOLICITORS OF RECORD: Mr. Bruce Morgan Gowling, Lafleur Henderson LLP
Ottawa, Ontario For the Applicant
Mr. Kenneth McKay Sim, Hughes, Ashton, McKay LLP
Toronto, Ontario
For the Respondents
FEDERAL COURT OF CANADA
Date: 20030827
Docket: T-635-02
BETWEEN:
SARASIN CONSULTADORIA E. SERVICOS LDA
Applicant
and
ROOX'S INC. and
THE REGISTRAR OF TRADE-MARKS
Respondents
REASONS FOR JUDGMENT
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