Date:
20070322
Docket:
T-1093-06
Citation:
2007 FC 308
Montréal, Quebec, March 22, 2007
PRESENT: Richard Morneau, Esq., Prothonotary
BETWEEN:
BROUILLETTE
KOSIE PRINCE
Applicant
and
ORANGE COVE-SANGER CITRUS
ASSOCIATION
CANADIAN REGISTRAR OF
TRADE-MARKS
Respondent
REASONS
FOR ORDER AND ORDER
[1]
This is a
motion by the Applicant for essentially an order striking out some of the
affidavits submitted by the Respondent and, in the alternative, for leave to
cross-examine all affiants of the Respondent. In any event, the Applicant seeks
an extension of time to produce its record under rule 309 of the Federal
Courts Rules (the rules).
[2]
This
motion takes place in the context of a judicial application filed by the
Applicant on June 30, 2006 against a decision of the Canadian Registrar of
Trade-Marks by which the Registrar refused to expunge the registration of the
trade-mark POM-POM whose registered owner is the Respondent.
[3]
At the end
of August 2006, within the time limits prescribed by rule 307, the Respondent
served and filed the affidavits of Fay O’Brien, Richard French and Lee C.
Bailey to supplement the Respondent’s evidence submitted before the Registrar.
[4]
The
Applicant did not request or proceed with any cross-examination on the
Respondent’s affidavits within the time limit prescribed by the rules which was
September 18, 2006. Shortly after September 18, 2006, the Applicant entered
into some discussions with the Respondent regarding the relevancy of the
O’Brien affidavit.
[5]
During
those discussions, it would appear that the Applicant only secured, through two
consent orders, its right to produce up to January 5, 2007 its Applicant’s
record. This deadline was not met by the applicant due apparently to the late
failure of the negotiations between the parties and the ensuing holidays of the
Applicant’s counsel.
[6]
On January
26, 2007, the Respondent received a notice of motion sent by the Applicant
seeking to strike the O’Brien and French affidavits. In its alternative relief
sought, the Applicant sought an opportunity to cross-examine on the O’Brien,
French, and Bailey affidavits.
[7]
It would
appear that said notice of motion raised for the first time the Applicant’s
wish to proceed with any cross-examinations.
[8]
Said
motion did not proceed as such. The motion at bar was only received by the
Respondent on March 2, 2007 through the production by the Applicant of a full
motion record.
Analysis
[9]
I shall
deal first with the Applicant’s request in this judicial application to strike
out the French and O’Brien affidavits produced by the Respondent.
[10]
The
legal test for striking out a pleading in an action is whether it is plain and
obvious that the claim discloses no reasonable cause of action: Inuit
Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney
General),
[1980] 2 S.C.R. 735, at 740.
[11]
In
a judicial review application, which is basically the nature of the proceeding
herein, the test is as stringent and has been laid out in Bull (David)
Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48 at
pages 53 to 55.
[12]
There,
it was determined that a motion to strike out in a judicial review proceeding
would only be allowed in exceptional cases:
[T]he focus in judicial review is on
moving the application along to the hearing stage as quickly as possible. This
ensures that the objections to the originating notice can be dealt with
promptly in the context of consideration of the merits of the case.
. . .
This is not to say that there is no
jurisdiction in this court either inherent or through Rule 5 [now Rule 4] by
analogy to other rules, to dismiss in summary manner a notice of motion which
is so clearly improper as to be bereft of any possibility of success. (See e.g.
Cyanamid Agricultural de Puerto Rico, Inc. v. Commissioner of Patents
(1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver
Island Peace Society et al v. Canada (Minister of National Defence) et al, [1994] 1 F.C. 102 (T.D.), at 120-121; 64 F.T.R. 127
(F.C.T.D.). Such cases must be very exceptional and cannot include cases
such as the present where there is simply a debatable issue as to the adequacy
of the allegations in the notice of motion.
[Underlining
added.]
[13]
The
Applicant’s position in regard to the striking out is that in a expungement
proceeding under the Trade-marks Act, R.S.C., 1985, c.T-13, the evidence
of use of the impugned mark has to be sworn by the registered owner of the mark
and such evidence is to be limited to the use issue.
[14]
However,
the decision of the Federal Court of Appeal in Registrar of Trade
Marks v. Harris Knitting Mills Ltd. (1985), 4 C.P.R. (3d) 488 suggests that
use evidence is acceptable as long as the evidence is furnished by the trade
mark owner.
[15]
In that
regard, the French affidavit comes from an agricultural cooperative which has
the Respondent as a member. It includes an invoice which appears to support
the sale of fresh citrus fruit in association with the POM-POM Registration in Canada during the period in issue
through the assistance of the cooperative Sunkist. Accordingly, I am prepared
to accept that this affidavit is submitted on behalf of the Respondent by one
of its distributors by virtue of their commercial relationship. Therefore,
this affidavit shall not be struck out as it is not clear and obvious that it
constitutes inadmissible evidence in a section 45 proceeding before this Court.
[16]
As to the
O’Brien affidavit, although it does not pertain to the use issue, it pertains
nevertheless to the identity of the party who requested the Registrar to issue
a notice to the Respondent. According to Brodenick and Basecom Rope v.
Registrar of Trade-marks, 1971, 65 C.P.R. 209, such issue might be relevant
when a request to the Registrar is made by a solicitor or a trade-marks agent
without stating the name of the party on whose behalf the request is made.
This situation could perhaps present itself here and therefore it is not clear
and obvious that the O’Brien affidavit is not relevant. Therefore, under this
motion said affidavit will not be struck out.
[17]
As for the
extensions of time required here by the Applicant, the test in that regard is set out in Canada
(A.G.) v. Hennelly (1999), 244 N.R. 399 (hereinafter Hennelly) where
MacDonald J.A. stated:
The
proper test is whether the applicant has demonstrated
1.
a continuing intention to pursue his or her application;
2.
that the application has some merits;
3.
that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay
exists.
[18]
With
respect to an extension of time to proceed to the cross-examination of each of
the Respondent’s affiants, the fact that the intent to proceed with
cross-examination was only announced by the Applicant at best on January 26,
2007 through a notice of motion - some four (4) months therefore after the
prescribed delay - brings me to conclude that the Applicant has not
demonstrated a continuing intention to pursue such course of action and that
there is no reasonable explanation for the delay. The wish by the Applicant to
proceed with cross-examinations appears to the Court as an afterthought which
should not be condoned. The Hennelly test is simply not met here.
[19]
In
addition, although the support affidavit and the written representations filed
by the Respondent allege to ambiguities in the affidavits and the need
therefore to proceed with cross-examinations, these allegations are in the
nature of bare and bald allegations which point to no particular ambiguities
which would justify a late right to cross-examinations.
[20]
As for the
extension of time for the Applicant to produce its Applicant’s record, I am
satisfied here that the intention to pursue same by the Applicant has been
demonstrated and that no prejudice to the Respondent arises from the delay.
Although one could argue that given the aforementioned comments, the Applicant
should have seen to produce its record earlier, I am satisfied that on balance,
the Applicant should benefit from a relatively short extension to serve and
file its Applicant’s record.
[21]
As to costs, since the
Respondent is largely successful on this motion, they will go to it.
ORDER
1.
The
Applicant shall serve and file its Applicant’s record on or before April 10,
2007;
2.
The
Applicant’s motion is otherwise dismissed;
3.
Costs go
to the Respondent.
“Richard
Morneau”
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