Date: 20080115
Docket: T-2245-07
Citation: 2008
FC 52
Vancouver, British Columbia, January
15, 2008
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
SIMPSON STRONG-TIE COMPANY,
INC.
Applicant
and
PEAK INNOVATIONS INC.
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Respondent seeks an order to strike the Notice of Application on the grounds
that the pleading is not in the form required by the Federal Courts Rules
(Rules), and more particularly Rule 301(f).
[2]
By way of
brief background, the Applicant commenced an appeal pursuant to section 56 of
the Trade-marks Act by filing a Notice of Application on December 27,
2007. The Applicant is seeking various relief, including an order setting aside
the decision of the Registrar of Trade-marks dated October 23, 2007 rejecting
the Opposition of the Applicant to application No. 1,185,743.
[3]
At paragraph 11 of the Notice of
Application, the Applicant indicates that the application will be supported by
the following documents:
(a)
a certified copy of the file history of the
Trade-mark Application 1,185,743 including the materials relevant to the
underlying Opposition proceedings;
(b)
the affidavits of the Applicant to be filed;
(c)
such other affidavit and other material as
counsel shall advise and this Honourable Court shall permit
[4]
The
Respondent submits that there is a radical defect in the pleading in that it
does not contain “a list of the documentary evidence to be used at the hearing
of the application”, as required by Rule 301(f). The Respondent maintains that
the list provided must be complete and comprehensive or should, at the very
least, identify the affidavits that will be used at the hearing. In support of
its position, the Respondent relies on the instructions for completing Form
301, which require an applicant to “list the supporting affidavits, including
documentary exhibits, and the portions of transcripts to be used.”
[5]
In theory,
Rule 301(f) could be viewed as requiring an applicant to list each and every
document that will be relied upon at the hearing of the appeal, including the
names of the deponents who will be providing affidavit evidence. However, in
practice, such specificity is neither mandated, nor required, by the Rules.
[6]
Part 5 of
the Rules, which governs proceedings brought by way of application, sets
out the order as well as the deadlines for taking procedural steps. Rule 306
provides that an applicant has 30 days from the date of issuance of the notice
of application to serve and file its supporting affidavits and documentary
material. If the Respondent’s interpretation of Rule 301(f) were to be adopted,
an applicant would be required to identify all of its deponents and documents
before even instituting the proceeding. Presumably, an applicant would also be
precluded from adducing additional evidence beyond the evidence listed, without
leave of the Court. Such a result would be at odds with the general scheme of
Part 5, which affords an applicant 30 days to marshal its evidence and to
finalize its affidavit evidence.
[7]
The
Applicant has failed to establish that there is any deficiency in the Notice of
Application that would justify striking the pleading. In light of the general
description of the documents listed in the Notice of Application, I am
satisfied that the Applicant has substantially complied with Rule 301(f).
[8]
Finally, I
adopt the conclusion reached by Mr. Justice Roger Hughes in Aventis Pharma
Inc. v. Minister of Health et al., 2005 FC 1396, that a Notice of
Application “is not to be
viewed with the same rigour” as a Statement of Claim. It
serves no useful purpose to move strike a pleading when no serious prejudice is
established, and the irregularity could be challenged by less drastic means,
such as a motion under Rule 58.
ORDER
THIS COURT ORDERS that
1.
The motion
is dismissed.
2.
Costs of
the motions in Court File Nos. T-2245-07,
T-2246-07, T-2247-07, T-2248-07, T-2249-07 and T-2250-07, hereby fixed in the global
amount of $750.00, shall be paid by the Respondent to the Applicant in any
event of the cause.
“Roger R.
Lafrenière”
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