Novopharm Ltd. v. Bayer Inc., docket T-289-97

Date: 19981201

Docket: T-289-97

OTTAWA, Ontario, this 1^st day of December, 1998.

PRESENT:      THE HONOURABLE MADAME JUSTICE MCGILLIS

BETWEEN:

     NOVOPHARM LTD.

     Applicant

     - and -

     BAYER INC. and

     REGISTRAR OF TRADE-MARKS

     Respondents

     REASONS FOR ORDER AND ORDER

     [Delivered from the Bench at Ottawa, Ontario

     on Tuesday, December 1, 1998]

[1]          Counsel for Bayer Inc. ("Bayer") has brought a motion requesting, among other things, the permission of the Court to serve and file a Supplementary Record. The hearing of the appeal from the decision of the Registrar of Trade-marks is scheduled to take place on December 16, 1998.

[2]          During the course of the submissions on the motion, it became apparent that the Supplementary Record consisted of bound and tabbed volumes of the tribunal materials previously filed by the Registrar of Trade-marks with the Court for use on the appeal. Counsel for Bayer has prepared the Supplementary Record for the sole purpose of assisting the presiding judge and counsel at the hearing.

[3]          Counsel for Novopharm Inc. ("Novopharm") has objected to the filing of the Supplementary Record on the basis that it does not contain the answers to undertakings given in the cross-examination of certain witnesses in the proceedings before the Registrar of Trade-marks. However, those answers to undertakings did not form part of the tribunal materials filed by the Registrar of Trade-marks with the Court. In the event that counsel for Novopharm wished to rely on the answers to undertakings for the purposes of the appeal, he ought to have filed supplementary affidavit evidence, in a timely manner as required by Rule 704(3) or (7) of the previous Federal Court Rules, which were in effect at the relevant time.

[4]          Counsel for Bayer should not have been required to bring a motion to file the Supplementary Record, which was a compilation of materials already filed with the Court, prepared for the purpose of assisting the presiding judge and counsel at the hearing.

[5]      IT IS ORDERED THAT the Supplementary Record shall be filed nunc pro tunc. Each party shall serve on the other party by facsimile transmission, and shall file with the Court on or before December 7, 1998, a memorandum of fact and law. Pursuant to Rule 55, Bayer is not required to serve and file a respondent's record. Costs of the motion shall be paid forthwith by Novopharm in the amount of $2,000.00, in any event of the cause.