The House Of Kwong Sang Hong Int'l Ltd. v. Borden Ladner Gervais, 2001 FCT 964

Date: 20010829

Docket: T-583-01

Neutral Citation: 2001 FCT 964

BETWEEN:

                                               THE HOUSE OF KWONG SANG HONG

                                                            INTERNATIONAL LIMITED

                                                                                                                                                    Applicant

                                                                            - and -

                                                    BORDEN LADNER GERVAIS and

                                                   THE REGISTRAR OF TRADE-MARKS

                                                                                                                                              Respondents

                                                  REASONS FOR ORDER AND ORDER

BLAIS

[1]                 This is a motion for an extension of time for the filing of the applicant's record.

[2]                 The respondent Borden Ladner Gervais LLP (hereinafter "respondent") has brought a motion seeking an order for the cross-examination of affiants. Madame Justice Tremblay-Lamer dismissed this motion on July 10, 2001. The respondent has appealed the order of Madame Justice Tremblay-Lamer to the Federal Court of Appeal in Court No. A-421-01. The respondent is proceeding expeditiously with the appeal having filed the notice of appeal on July 16, 2001 and having filed and served the appeal book on July 23, 2001.

[3]                 I have carefully reviewed the written representations by both parties.

[4]                 Counsel for the respondent was right when she said that the filing of the applicant's record at this stage could be premature if the respondent succeeds with its motion to the Court of Appeal.

[5]                 Nevertheless, this question was raised through correspondence with Madame Justice Tremblay-Lamer after she had rendered her decision on July 10, 2001.

[6]                 For its part, the applicant seems to be prepared to file documents that it will have to amend by filing new materials if the decision of the Court of Appeal favours the respondent. However, the respondent has adopted the pragmatic view that it will not be helpful to file documents that will have to be replaced or amended after the decision of the Court of Appeal.

[7]                 Counsel for the applicant has also indicated that the applicant was not prepared to consent to what would amount to a stay of these proceedings pending a hearing of the appeal. In my view, a motion for a stay could have been appropriate in this case. Nevertheless, none of the parties have decided to present such a motion.

[8]                 The Court is facing a simple motion for an extension of time to file the applicant's record. The motion is reasonable and is not opposed by the other party. The applicant has also provided valid reasons for the delay.

[9]                 Therefore, the motion for an extension of time to file the applicant's record is granted. The applicant is allowed five days from this order to file and serve its record.

[10]            Costs in the cause.

Pierre Blais                                          

Judge

OTTAWA, ONTARIO

August 29, 2001