Importations Alimentaires Stella Inc. v. National Cheese Company Limited, docket T-2851-96

     Date: 19990429

     Docket: T-2851-96

Between:

IMPORTATIONS ALIMENTAIRES STELLA INC.,

     Applicant,

     - and -

     NATIONAL CHEESE COMPANY LIMITED,

     Respondent.

     ORDER AND REASONS FOR ORDER

Roger R. Lafrenière, Prothonotary:

[1]      On February 18, 1999 the applicant received from this Court a notice of status review ("the review notice"). By that notice the applicant was to show cause why the proceeding should not be dismissed for delay pursuant to Rules 381 and 382(2)(a) of the Federal Court Rules (1998) ("the Rules").

[2]      The originating notice was filed on December 24, 1996, accompanied by three affidavits in support of the application. It was an application pursuant to s. 57(1) of the Trade Marks Act to obtain an order declaring invalid and striking from the Register of Trade Marks three registrations of the respondent. On March 3, 1997 the respondent filed five affidavits in response to the applicant's application.

[3]      By its own admission the applicant subsequently took no steps in the matter until service of the review notice nearly two years later.

[4]      The review notice was issued since, under Rule 380(1)(b):

380. (1) Subject to subsection (3), where

     . . . . .

(b)      in an application or appeal, 180 days have elapsed since the issuance of the notice of application or appeal and no requisition for a hearing date has been filed,

the Court shall fix a time and date for a status review.

[5]      In response to the review notice the applicant filed written representations, containing the following explanation to justify the delay:

[TRANSLATION]

The delay experienced by the applicant in complying with Rules 309 et seq. of the Federal Court Rules (1998) results essentially from difficulties arising from the transition between the system of the Federal Court Rules as they existed before April 25, 1998 and the new Federal Court Rules (1998) which have been in effect since that date. Under the old Rules the parties were not subject to any particular deadline once the evidence was complete on either side in applying for a hearing in this Court. Since the new Federal Court Rules (1998) have come into effect, the parties are subject to very specific deadlines: accordingly, if the case had been begun after April 25, 1998, it is quite probable that a hearing date would already have been set.

[6]      The applicatn argued that it intends to proceed with this application promptly and fully, in compliance with the deadlines laid down in the Rules 309 et seq. It also argued that it would be costly and prejudicial to the applicant if the application at bar were dismissed.

[7]      In its reply the respondent stated that the applicant had submitted no good reason why the proceeding should not be dismissed for delay. In the respondent's view:

. . . the Applicant has seemingly indicated that the proceeding should not be dismissed as it has allegedly suffered in some manner as a result of the introduction of the new Federal Court Rules in April, 1998. Particularly, the Applicant has indicated that it did not face any deadlines under the old Rules while it would have faced precise deadlines if this proceeding had been initiated after April 25, 1998.

With respect, this is clearly no excuse for the Applicant's complete failure to take any activity in this proceeding for over two years. Indeed, if it were, it is submitted that it would provide a complete defence to the dismissal of many other completely dormant proceedings. Clearly, this is not the intent or effect of the Rules of this Honourable Court. Of course, even undere the "old" Federal Court Rules, an application could be dismissed for delay.

The respondent accordingly asked that the proceeding be dismissed with costs.

[8]      In my view, the fact that the applicant had "problems" once the new Federal Court Rules came into effect on April 25, 1998 is not a good reason for the unwarranted delay in the case at bar. To begin with, although the applicant had no specific deadline to ask for a hearing between March 1997 and April 1998, its application specified in s. 57 of the Trade Marks Act should have been heard and decided summarily (see s. 59(3)).

[9]      Secondly, after April 25, 1998 the applicant had a duty to comply immediately with the new deadlines mentioned in the new Rules and so to serve and file its record. This duty results from Rule 501(1), a transitional provision, which states the following:

501. (1) Subject to subsection (2), these Rules apply to all proceedings, including further steps taken in proceedings that were commenced before the coming into force of these Rules. [My emphasis.]

[10]      Finally, to ease the transition between the old and new Rules the Acting Associate Chief Justice by an order dated March 30, 1998 excluded from the scope of Rule 380 certain proceedings or types of proceedings under way at the time the Rules came into effect until the dates specified in the order. The Court had ordered that as of January 1, 1999 court proceedings filed before January 1, 1997 should be the subject of a status review. The applicant therefore had considerable prior notice that his application would be the subject of a review notice.

[11]      Hugessen J.A. of this Court has had to rule on the approach to be used in considering a status review. In paragraph 4 of his judgment in Baroud v. Canada, [1998] F.C.J. No. 1729, Hugessen J.A. examined the points to be considered and said the following:

In deciding in what manner to exercise the wide discretion granted to it by Rule 382 at the conclusion of a status review, it seems to me that the Court needs to be concerned primarily with two questions:

1) what are the reasons why the case has not moved forward faster and do they justify the delay that has occured?; and

2) what steps is the plaintiff now proposing to move the matter forward?

The two questions are clearly inter-related in that if there is a good excuse for the case not having progressed more quickly, the Court is not likely to be very exigent in requiring an action plan from the plaintiff. On the other hand, if no good reason is advanced to justify the delay, the plaintiff should be prepared to demonstrate that he recognizes that he has a responsibility to the Court to move his action along. Mere declarations of good intent and of the desire to proceed are clearly not enough. Likewise, the fact that the defendant may have beenn lax and may not have fulfilled all his procedural obligations is largely irrelevant: primary responsibility for the carriage of a case normally rests with a plaintiff and at a status review the Court will look to him for explanations.

[12]      If the first test is applied to the facts of the case at bar, I have to conclude that the explanation given by the applicant for the delay in the proceeding is unacceptable and does not in any way justify the delay that occurred. Using the second test, I find that at the time the applicant prepared its writeen representations (one month after service of the review notice), it apparently had not prepared its record and was suggesting a six-week delay to produce and file it, despite the much shorter delay mentioned in Rule 309. I therefore question the applicant's despatch in moving ahead with the proceedings.

[13]      The applicant's application will therefore be dismissed for delay pursuant to Rule 382(2)(a).

Roger R. Lafrenière      Prothonotary

TORONTO, ONTARIO

April 29, 1999

Certified true translation

Bernard Olivier, LL. B.

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT No:          T-2851-96

STYLE OF CAUSE:      IMPORTATIONS ALIMENTAIRES STELLA INC.

             - and -

NATIONAL CHEESE COMPANY LIMITED

CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.

REASONS FOR ORDER

AND ORDER BY:      LAFRENIÈRE, P.

DATED:          THURSDAY, APRIL 29, 1999

SOLICITORS OF RECORD:      Léger Robic Richard

     Barristers & Solicitors

     55 rue St. Jacques

     Montréal (Québec)

     H2Y 3X2

         For the Applicant

     Smart & Biggar

     Barristers & Solicitors

     438 University Avenue

     Suite 1500, Box 111

     Toronto, Ontario

     M5G 2K8

         For the Respondent

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FEDERAL COURT OF CANADA      Date: 19990429      Docket: T-2581-96 Between: IMPORTATIONS ALIMENTAIRES STELLA INC.,      Applicant, - and - NATIONAL CHEESE COMPANY LIMITED,      Respondent.           REASONS FOR ORDER AND ORDER