Date: 20121205
Docket: A-112-12
Citation: 2012 FCA 319
CORAM: NADON
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
THE DEVIL'S MARTINI
Appellant
and
BACARDI & COMPANY
LIMITED
Respondent
Heard at Toronto, Ontario, on December 5, 2012.
Judgment delivered from
the Bench at Toronto, Ontario, on December 5, 2012.
REASONS FOR JUDGMENT OF THE COURT BY:
SHARLOW J.A.
Date: 20121205
Docket: A-112-12
Citation: 2012 FCA 319
CORAM: NADON
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
THE DEVIL’S MARTINI
Appellant
and
BACARDI & COMPANY
LIMITED
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered
from the Bench at Toronto, Ontario, on December 5, 2012)
SHARLOW J.A.
[1]
This
is an appeal of an interlocutory order in an appeal to the Federal Court from
the Trade-Marks Opposition Board (2011 TBOB 65). The Board allowed in part the
application of The Devil’s Martini Inc. to register the trade-mark THE DEVIL’S MARTINI
in respect of certain goods. On June 20, 2011, Bacardi and Company Limited
filed an application in the Federal Court to appeal the decision of the Board
(Federal Court File T-1013-11).
[2]
The
Devil’s Martini Inc. filed a motion in the Federal Court for an order
permitting it to cross-examine on two affidavits that had been filed on behalf
of Bacardi and Company Limited in the proceedings before the Board. That motion
was dismissed by Prothonotary Aalto on November 29, 2011, but he granted The
Devil’s Martini Inc. an extension of time to January 31, 2012 to file other
evidence in the Federal Court in support of its defence of the Board’s order.
Apparently, The Devil’s Martini Inc. filed no evidence in the Federal Court
within that time.
[3]
The
disposition of the motion to permit cross-examination on the affidavits filed
before the Board turned on Prothonotary Aalto’s interpretation of an agreement
of counsel to defer the cross-examination. Prothonotary Aalto construed the
agreement as delaying the cross-examinations while the Board proceedings were
in progress, but not after Board had rendered its decision.
[4]
The
Devil’s Martini Inc. appealed the order of Prothonotary Aalto. That appeal was
dismissed by Justice Near on March 27, 2012. The Devil’s Martini Inc. now
appeals to this Court.
[5]
The
principal issue in this Court is whether, with respect to the interpretation of
the agreement of counsel, Justice Near correctly selected and applied the
applicable standard of review. Having reviewed the record and considered the
submissions of the parties, we conclude that he did so. Accordingly, there is
no basis for appellate intervention on that issue.
[6]
A
second issue arises as to whether Justice Near erred in law when he failed to
consider, independently of the principal issue, the motion of The Devil’s
Martini Inc. for a further extension of time to file evidence in the Federal
Court. We have concluded that he did err in that respect, and that this is a
matter that should be dealt with now. We will do so.
[7]
For
these reasons, the appeal will be allowed with respect to the extension of time
and otherwise dismissed. An order will be made extending to February 4, 2013
the time for filing the evidence of The Devil’s Martini Inc. in the Federal
Court. Costs of this appeal will be awarded to Bacardi and Company Limited.
"K. Sharlow"
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-112-12
(APPEAL
FROM AN ORDER OF THE HONOURABLE MR. JUSTICE NEAR, DATED MARCH 27, 2012, IN
DOCKET NO. T-1013-11)
STYLE OF CAUSE: THE DEVIL'S MARTINI v. BACARDI & COMPANY
LIMITED
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December
5, 2012
REASONS FOR JUDGMENT
OF THE COURT BY: (NADON,
SHARLOW & DAWSON JJ.A.)
DELIVERED FROM THE
BENCH BY: SHARLOW
J.A.
APPEARANCES:
|
Kenneth
D. McKay
|
FOR
THE APPELLANT
|
|
Monique
Couture
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Sim,
Lowman, Ashton & McKay LLP
Toronto, Ontario
|
FOR THE APPELLANT
|
|
Gowling
Lafluer Henderson LLP
Ottawa, Ontario
|
FOR THE RESPONDENT
|
Email this Content