Date: 20080710
Docket: A-248-08
Citation: 2008 FCA
235
CORAM: NOËL J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
SIMPSON
STRONG-TIE COMPANY, INC.
Appellant
(Applicant)
and
PEAK
INNOVATIONS INC.
Respondent
(Respondent)
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on July 10, 2008.
REASONS
FOR ORDER BY: NOËL
J.A.
CONCURRED
IN BY: SHARLOW
J.A.
RYER J.A.
Date: 20080710
Docket: A-248-08
Citation: 2008 FCA 235
CORAM: NOËL
J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
SIMPSON STRONG-TIE COMPANY,
INC.
Appellant
(Applicant)
and
PEAK INNOVATIONS INC.
Respondent
(Respondent)
REASONS FOR ORDER
NOËL J.A.
[1]
This is an
application brought by the respondent for an order striking the appellant’s
Notice of Appeal dated May 29, 2008 on the ground that the order appealed from
was interlocutory in nature, and that the Notice of Appeal was filed beyond the
10 day period set out in paragraph 27(2)(a) of the Federal Courts Act.
[2]
The
underlying proceeding in the Federal Court is an appeal (by way of application)
from a decision by the Registrar of Trademarks involving an opposition brought
by the appellant against a trademark application filed by the respondent. The
application has not yet reached the hearing stage.
[3]
The
decision sought to be appealed is dated May 1, 2008. By this decision, Lemieux
J. dismissed an application to set aside the order of Prothonotary Aalto whereby
the appellant’s motion seeking leave to amend the Statement of Opposition was
originally denied. The amendment in question adds a specific plea of section
30(h) of the Trade-marks Act as a ground of opposition. After
conducting a de novo review of the matter, Lemieux J. confirmed the
earlier decision.
[4]
In resisting
the application to strike, the appellant relies on the statement made by the
Applications Judge in the course of his judgment to the effect that the “new
ground” sought to be added by the proposed amendment “was vital to the final
resolution” of the matter. As such, the appellant maintains that the judgment
“determines a final right” and is therefore a “final judgment” within the
meaning of section 27(4) of the Federal Courts Act.
[5]
With
respect, Lemieux J.’s view that his decision denying leave was vital to the
final resolution of the matter was relevant to his determination of the
standard to be applied in reviewing
the Prothonotary’s decision and nothing else. In particular,
this statement has no bearing on whether Lemieux J’s own decision was
interlocutory or final in nature.
[6]
The
appropriate test in this regard is set out by the decision of this Court in Reebok
Canada v. Canada (Deputy Minister of National
Revenue, Customs and Excise – M.N.R.), [1995] F.C.J. No. 220 (Q.L.) at paragraph
9:
… an
"interlocutory judgment or order" is one that does not determine in
whole or in part any substantive right of any of the parties …
[7]
Applying
this test, the decision of Lemieux J. refusing to amend the Statement of
Opposition, like the earlier decision of the Prothonotary to the same effect,
is interlocutory in nature, since it does not determine the substantive rights
of any of the parties. It follows that the appellant had to bring their appeal
within 10 days from Lemieux J’s pronouncement.
[8]
At the
conclusion of its written submission, the appellant seeks in the alternative an
extension of time to file the Notice of Appeal. However, aside from making this
request, the appellant has made no attempt to demonstrate that the applicable
criteria for extending the time limit are present on the facts of this case (Pharmascience Inc. v.
Canada (Minister of Health), 2003 FCA 333, at
para. 6). There is therefore no basis for granting an extension.
[9]
The
application to strike the Notice of Appeal on the ground that it was filed out
of time will accordingly be allowed and the Notice of Appeal will be struck
with costs in favour of the respondent.
“Marc
Noël”
“I
agree,
K. Sharlow J.A.”
“I
agree,
C. Michael Ryer
J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-248-08
STYLE OF CAUSE: Simpson
Strong-Tie Company, Inc. and Peak Innovations Inc.
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: NOËL J.A.
CONCURRED IN BY: SHARLOW J.A.
RYER J.A.
DATED: July 10, 2008
WRITTEN
REPRESENTATIONS BY:
Kenneth D. McKay
|
FOR
THE APPELLANT
|
Paul Smith
Lawrence Chan
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
Sim, Lowman, Ashton & McKay LLP
Toronto, Ontario
|
FOR
THE APPELLANT
|
SMITHS IP
Vancouver,
British
Columbia
|
FOR
THE RESPONDENT
|