Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc., docket T-1238-96

     T-1238-96

BETWEEN:

     TOM PAC INC.,

     Petitioner,

     - and -

     KEM-A-TRIX (LUBRICANTS) INC.,

     Respondent,

     - and -

     REGISTRAR OF TRADEMARKS,

     Mis-en-cause.

     REASONS FOR ORDER

DUBÉ J:

     On April 29, 1997, the respondent ("KEM-A-TRIX") filed a notice of appeal of an order pronounced by the prothonotary on November 26, 1996. Under Rule 336(5) of the Federal Court Rules any person affected by an order of a prothonotary must file an appeal within 14 days after the order complained of. Thus, KEM-A-TRIX is more than four months late in its appeal.

     A party requesting an extension of time to appeal under Rule 336(5) must submit a reasonable explanation as to why the appeal was not filed in time (see Korompay v. Ont. Hydro¹). The notice of appeal filed by KEM-A-TRIX outlines 11 reliefs sought and 51 grounds of appeal. Paragraphs 42 to 46 provide the following explanations for the delay in filing the appeal. Almost immediately after the decision of the prothonotary, the respondent's attorney (Mr. Barry Coleman) advised the petitioner ("TOM PAC INC.") of his intention to appeal. He began preparing his application and had arranged with counsel for TOM PAC INC. for his motion to be presented at the first sitting of the Court after the Christmas break. Unfortunately, he could not complete his application due to health reasons and "for a considerable period of time he has been unable to carry out his regular work tasks due to what has been identified by his physicians as clinical depression and for which he has been treated for some time with anti-depressants".

     Mr. Coleman filed his own affidavit in support of his explanations for the delay. In it he states that he had substantially completed his application but was unable to finish the tasks: "I would sit down at my computer with the intention of finally completing this proceeding, only to decide I was not satisfied with what I had done and then set about almost totally redoing my previous work". He found himself totally exhausted and lacking energy. He took a medication prescribed by his family doctor -- Ludiomil 10 mg. "As the weather improved with the onset of spring, I also seemed more capable of functioning".

     Mr. Coleman also filed a letter from Dr. Edward I. Adelson, MD, a cardiologist, dated May 27, 1997, to the effect that he has "been following this man since July 1994 because of chest pain and hypertension". Dr. Adelson notes that "the stress and depression were playing a significant if not a major role in his medical problems". He adds that "beginning in March 1997, his emotional status had deteriorated to the point where Ludiomil became a necessary regular feature of his medical regimen ... The symptoms of his emotional state became tiredness, sluggishness and poor function". Dr. Adelson concludes that "Nevertheless, at this point he is able to function at a reasonable level".

     Counsel for TOM PAC INC. admits that Mr. Coleman contacted him with reference to this appeal within the stipulated 14 day period but states that Mr. Coleman neglected to pursue the matter whereas he appeared to be quite active pursuing parallel proceedings before the Superior Court of the Province of Quebec. The latter's explanation is to the effect that throughout that dark period he did have some brief moments of legal activity. He had "ups and downs". He also concedes that he was at times negligent.

     The failure on the part of counsel to act on time must also be assessed from the point of view of his client who will have to bear the consequences (see Cité de Pont Viau v. Gauthier Mfg. Ltd.²).

     On behalf of the client KEM-A-TRIX, Mr. Norman Katz filed an affidavit to the effect that Mr. Coleman has been handling the current trade-mark dispute launched by his brother David Katz (principal of TOM PAC INC.) since the beginning. In addition to his representations before this Court and the related case in the Superior Court of Quebec, Mr. Coleman is also inter-acting with counsel retained to handle the proceedings instituted by David Katz in the United States. He states that removing Mr. Coleman as a solicitor because of his late filing would cause him "extreme hardship and tremendous unnecessary expense". Mr. Coleman has advised him that he has overcome his health problems and is now able and anxious to continue representing his company.

     In P. J. LeBel and The Queen³, Teitelbaum J. of this Court relied on three criteria to be considered in such matters, at p. 88:

     In the case at bar, it is common ground that the applicant did have a bona fide intention to appeal within 14 days following the prothonotary's decision. After some hesitation - he confessed to some negligence on his part - I am prepared to accept that the health reasons advanced by Mr. Coleman do constitute a special circumstance which would justify his delay. Mr. Coleman's own conduct of the case, that is the filing of voluminous documents (witness the instant motion tendering more than 50 grounds of appeal) after long periods of silence, coupled with his own high-strung demeanour in Court, reflect the attitude of a person who is capable of intense bursts of activity probably followed by bouts of depression.

     The late Mr. Justice Pigeon of the Supreme Court of Canada in the case of Murray Bowen⁴ enunciated a principle which is relevant to this matter: "This principle is that a party must not be deprived of his rights on account of an error of counsel where it is possible to rectify the consequences of such error without injustice to the opposing party".

     In the instant case, there is no evidence that, apart from the delay, the other party will suffer any injustice. This appears to be an ongoing commercial war between two brothers and the four month hitch ought not to result in dire consequences.

     There remains to decide whether or not KEM-A-TRIX has an arguable case. In his decision of November 26, 1996, the learned prothonotary had to deal with two motions. First, he authorized TOM PAC INC. to file a supplementary affidavit; second, he denied KEM-A-TRIX's motion for cross-examination, particulars, discoveries and an extension of delay for reply. KEM-A-TRIX does not attack the authorization to file a supplementary affidavit, but limits its appeal to the reliefs denied. Mr. Coleman relied on a considerable number of decisions, mostly to show that some of the jurisprudence favours his position.

     It is not for me at this stage to decide whether or not KEM-A-TRIX has a solid case against the decision of the prothonotary to deny him the reliefs sought. In my view, he has an arguable case. Consequently, the extension of time will be granted to appeal. However, should there be any further delay caused by Mr. Coleman in this matter, he may find the Court less indulgent in the future.

     Thus, the application is granted but the costs of this motion for extension of time is payable to the petitioner TOM PAC INC. in any event of the cause.

O T T A W A

July 3, 1997

     Judge

¹      [1990] 1 F.C. D-14 (T.D.).

²      [1978] 2 S.C.R. 516">[1978] 2 S.C.R. 516.

³      [1987] 2 C.T.C. 86.

⁴[1979] 1 S.C.R. 511">      Murray Bowen v. City of Montréal, [1979] 1 S.C.R. 511.