McCain Foods Ltd. v. Conagra Inc., 2002 FCA 100

                                                                                                                                            Date: 20020313

                                                                                                                                        Docket: A-510-01

                                                                                                                Neutral citation: 2002 FCA 100

CORAM:        STRAYER J.A.

BETWEEN:

                                                          McCAIN FOODS LIMITED

                                                                                                                                                       Appellant

                                                                                 and

                                                                    CONAGRA, INC

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

STRAYER J.A.

[1]                 There is a considerable history of delay in the process of producing an appeal book in this case. The notice of appeal was served on September 17, 2001. Now, almost six months later, there is no appeal book yet prepared. The appeal is from a decision of a judge of the Trial Division sitting on appeal from a decision of the Trade Marks Opposition Board.

[2]                 The parties, for reasons which are unexplained, at least in the present motion, took four months to complete an agreement on the contents of the appeal book. They required three extensions of time from the Court for this purpose. The agreement was finally filed on January 15, 2002. The due date for serving and filing the appeal book was February 14, 2002. This proved to be too much of a challenge for the appellant who obtained a consent extension from the respondent under Rule 7(1) giving it until March 1, 2002 to file. But March 1, 2002, the date agreed to, was still not possible. The appellant now seeks a further month to complete this daunting task.

[3]                 In its motion the only justification the appellant provides for this further delay is that the respondent has consented to it. But it is clear from Rule 7 that consent is only an automatic justification for a delay if it falls within the limits of that Rule, allowing only one extension by consent, of one-half the time originally allowed for the step in question. It is further clear from the present rules that the pace of litigation, once started, is not left to the parties alone to determine: the Court has a concern and a right to prevent chronic delays. If there are to be delays, they must be justified to the Court.

[4]                 In its material seeking yet another delay the appellant provides no explanation for why it cannot produce the appeal book in a timely manner. The only justification offered is that the appellant has requested the extension of time "at the earliest possible moment". (What this means apparently is that the motion was filed the day that the time previously allowed actually expired).

[5]                 In the circumstances the motion must be dismissed with leave to the appellant to bring a new motion within 15 days of the date of this order if it can produce clear evidence of justification for the delay. Failing that it will of course be open to the respondent to make an application for dismissal of the appeal for delay.

                                                                                                                                          (s) "B.L. Strayer"          

J.A.