Date: 20100226
Docket: A-460-09
Citation: 2010 FCA 67
Present: SHARLOW
J.A.
BETWEEN:
MAPLE LEAF FOODS INC.
Appellant
and
CONSORZIO DEL PROSCIUTTO DI PARMA
Respondent
and
THE REGISTRAR OF TRADE-MARKS
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
The
Attorney General of Canada seeks an order removing the Registrar of Trade-Marks
as a respondent in this appeal on the basis that the Registrar is not a
necessary or proper party. The respondent Consorzio del Prosciutto di Parma has
consented to the motion but the appellant Maple Leaf Foods Inc. has not.
[2]
In
this appeal, Maple Leaf is challenging a judgment of the Federal Court dated
October 15, 2009 (2009 FC 1035) dismissing its application for judicial review
of a decision of the Registrar. In the Federal Court application, Maple Leaf
was seeking, among other things, a declaration that Consorzio is not a “public
authority” within the meaning of subparagraph 9(1)(n)(iii) of the Trade-Marks
Act, R.S.C. 1985, c. T-13. Maple Leaf was also seeking an order compelling
the Registrar to withdraw an objection to a pending trade-mark application by
Maple Leaf that, according to Maple Leaf, is based on an incorrect
interpretation of subparagraph 9(1)(n)(iii).
[3]
In
its notice of appeal, Maple Leaf named two respondents, Consorzio and the
Registrar. Consorzio has served and filed a notice of appearance.
[4]
The
Registrar served a notice of appearance on Maple Leaf, but withdrew the notice on
the basis that it was served in error. The notice of appearance was never
filed.
[5]
The
Registrar had also been named as a respondent in the application for judicial
review in the Federal Court, and had filed a notice of appearance indicating an
intention to oppose the application. The Registrar took no active part in the
Federal Court proceedings, and did not seek to be removed as a respondent.
[6]
It
appears to me that the Registrar should not have been named as a party in the
application for judicial review in the Federal Court. The governing provision
is Rule 303(1) of the Federal Courts Rules, SR/98-106, which reads as
follows:
|
303. (1) Subject to
subsection (2), an applicant shall name as a respondent every person
(a)
directly affected by the order sought in the application, other than a
tribunal in respect of which the application is brought; or
(b) required to be named as a party
under an Act of Parliament pursuant to which the application is brought.
|
303. (1) Sous réserve du
paragraphe (2), le demandeur désigne à titre de défendeur :
a) toute personne directement touchée par l’ordonnance
recherchée, autre que l’office fédéral visé par la demande;
b) toute
autre personne qui doit être désignée à titre de partie aux termes de la loi
fédérale ou de ses textes d’application qui prévoient ou autorisent la
présentation de la demande.
|
[7]
Rule
303(1)(a) did not apply to require the Registrar to be named as a
respondent because the Registrar is the statutory decision maker whose decision
is under review. Rule 303(1)(b) did not apply because there is no
statutory requirement to name the Registrar as a party.
[8]
The
provision governing the naming of respondents in an appeal is Rule 338(1) of
the Federal Courts Rules, which reads as follows:
|
338. (1) Unless the
Court orders otherwise, an appellant shall include as a respondent in an
appeal
(a) every party
in the first instance who is adverse in interest to the appellant in the
appeal;
(b) any other
person required to be named as a party by an Act of Parliament pursuant to
which the appeal is brought; and
(c) where there are no persons that are
included under paragraph (a) or (b), the Attorney General of Canada.
|
338. (1) Sauf ordonnance
contraire de la Cour, l’appelant désigne les personnes suivantes à titre
d’intimés dans l’appel :
a) toute personne qui était une partie dans la première
instance et qui a dans l’appel des intérêts opposés aux siens;
b) toute autre personne qui doit être désignée à titre de
partie aux termes de la loi fédérale qui autorise l’appel;
c) si les alinéas a) et b) ne s’appliquent pas, le
procureur général du Canada.
|
[9]
Maple
Leaf relies particularly on Rule 338(1)(a), but in my view that reliance
is misplaced. Despite an early indication that the Registrar intended to oppose
the Federal Court application, the Registrar as the statutory decision maker is
not adverse in interest to Maple Leaf in respect of this appeal. It may well be
that the Registrar is of the opinion that Maple Leaf’s position in this appeal
has no merit, but that does not give the Registrar an “interest” in this matter
as that term is used in Rule 338(1), much less an interest that is adverse to
the interest of Maple Leaf.
[10]
Maple Leaf
cites my decision in Nowoselsky v. Canada (Canadian Human Rights Commission), 2005 FCA 276. In that case I
refused the motion of a tribunal to be removed as the only respondent in an
appeal from the Federal Court. The tribunal had also been named as the only
respondent in a judicial review application in the Federal Court, but for a
number of reasons it proved impossible for the applicant to correct the error
although he tried to do so. The tribunal’s motion to be removed as a
respondent in the appeal was dismissed because the particular circumstances of
the case brought the tribunal within Rule 338(1)(a) (see also the
decision of this Court disposing of the appeal, 2006 FCA 382). There are no
such circumstances in this case.
[11]
In
my view, Rule 338 justifies an order removing the Registrar as a party to this
appeal. An order will be made accordingly.
Costs
[12]
The
Attorney General of Canada seeks costs against Maple Leaf. In a reply
submission, the Attorney General of Canada repeated the request for costs
against Maple Leaf and stipulated an amount which exceeds the amount suggested
in the motion record. The reply submission includes an affidavit to which is
appended some correspondence and a draft bill of costs. Rule 369 does not
permit an affidavit to be submitted in a reply, and for that reason I have
disregarded the affidavit.
[13]
I
note also that among the documents appended to the affidavit are “without
prejudice” communications between counsel. Those documents remained in the
reply submissions despite the objections of counsel for Maple Leaf. The
improper inclusion of those documents is a further reason to disregard the
affidavit.
[14]
The
matter of costs will be reserved pending the agreement of the parties or,
failing agreement, a motion to be made as stipulated in the order disposing of
this motion.
“K.
Sharlow”
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