T-2411-96
IN THE MATTER OF THE TRADE MARKS ACT
R.S.C., c. 15, c.44, as amended
BETWEEN:
FIREBOLT ENGINE INSTALLATION
CENTRES INC.
Applicant
- and -
REGISTRAR OF TRADE-MARKS
AND FEDERAL SIGNAL CORPORATION
Respondents
REASONS FOR ORDER
(Delivered from the Bench at Calgary, Tuesday,
October 28, 1997 as edited)
ROTHSTEIN, J.:
This is an application to judicially review a decision dated August 5, 1996 of a Senior Hearing Officer of the Registrar of Trade Marks confirming that an oral hearing would be arranged with respect to proceedings involving the parties before that tribunal. The applicant says that the decision was made in breach of principles and natural justice in that it was made on the request of the respondent Federal Signal with the applicant Firebolt Engine having no opportunity to make submissions before the decision was made. However, following that decision, counsel for Firebolt did make submissions to the Senior Hearing Officer that there should be no oral hearing. There was an exchange and submission of correspondence, the result of which was a decision dated October 10, 1996 by the Senior Hearing Officer which provided as follows, amongst other things:
I have considered both parties' submissions. However as I do not see any real prejudice that would be suffered by the registrant if a hearing is granted, I see no reason to deviate from the usual practice of granting an oral hearing when one has been requested. I would point out that, contrary to the registrant's submissions, there is no obligation on the registered owner to attend the oral hearing.
The provision under which the oral hearing was directed to be conducted was s. 45 of the Trade Marks Act, ss. 2 of which states:
(2) The Registrar shall not receive any evidence other than the affidavit or statutory declaration, but may hear representations made by or on behalf of the registered owner of the trade-mark or by or on behalf of the person at whose request the notice was given.
(underlining added)
In the context of s.s. 2, it appears that, although no oral evidence is permitted, an oral hearing of representation is contemplated. Use of the word "may" makes it clear that the receipt of oral representation is within the discretion of the Registrar. The Registrar's discretion seems to be unfettered in this regard. This is a case in which the well-known principle governing interference by the Court with discretionary decisions of tribunals set forth in Maple Lodge Farms Ltd. v. Canada (1982) 2 S.C.R. 2 at 7 per MacIntyre J. is applicable.
Where the statutory discretion has been excercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the Courts should not interfere.
This principle is especially pertinent when the discretionary decision relates to the conduct of proceedings before a tribunal where the tribunal is the master of its own procedure.
Dealing specifically with this case, as I have indicated, the judicial review is taken from the decision of August 5, 1996. Indeed if that decision was made without hearing represesentations from one of the parties, it is arguable that the decision was made in breach of principles of natural justice. However, the tribunal then went on to receive submissions from the parties and made a further decision on October 10, 1996. There is no suggestion that the October 10, 1996 decision was made in breach of principles and natural justice and indeed, it was only made after both parties made submissions on the question of whether an oral hearing should be convened. The tribunal itself remedied any deficiency with the August 5, 1996 decision. An order quashing that decision now by the Court will serve no useful purpose1.
While the October 10, 1996 decision was not the one from which judicial review is sought, the focus of counsel's argument was respect to it. I will therefore make some further observations relative thereto. Counsel for the applicant submits that the October 10, 1996 decision fails to take account of considerations that the tribunal should have taken into account. However, as I have indicated, the discretion granted to the tribunal is unfettered and it is for the tribunal to consider those matters that it thinks relevant and material in making a decision whether or not to hold an oral hearing. It did so in this case.
While the Registrar's discretion is unfettered, I would observe that in some of the material before me there seems to be some guidance provided to the Registrar that may be appropriate to consider in future cases. The current practice of the Registrar seems to be that an oral hearing will be convened whenever a party requests it. However, in an explanatory note to Rules of Practice dated March 16, 1988 (which note is no longer applicable) there appears the following:
3. 2 ORAL HEARINGS
| a) - Oral hearings are time consuming and expensive. They should only be granted where they are of a distinct advantage to the parties; principally to the Registrar. It follows therefore that they should not be requested before its advantages can be clearly identified; under the present rules, after both parties have filed written arguments. Again, both the registrant and the requesting party should be in a position to evaluate the desirability of the Registrar holding one and of their attendance to such a hearing. Neither party should feel obligated to attend because of the uncertainty of the subject matter to be argued. |
Apart from the suggestion that neither party should feel obligated to attend,2 it seems to me that this provision was a common sense approach as to when oral hearings should be convened. The considerations set forth in this note generally provide a sound basis upon which to decide whether an oral hearing should or should not be convened. The note is consistent with the dicta of the Federal Court of Appeal in Anheuser-Busch, Inc. v. Carling O'Keefe [1983] 2 F.C. 71 at 79 where Heald, J.A. on behalf of the Court states, in respect of proceedings under section 44 (now section 45):
Based on the scheme of section 44 as set forth supra, and on the limited purpose for which the section was enacted, and the clear intention of Parliament that the section 44 procedure be simple, summary and expeditious, I am not prepared to imply a power in the Registrar to unduly prolong those proceedings by the imposition of a stay pending the outcome of Court litigation.
There is no application for a stay in this case. However, the reference to the proceedings being simple, summary and expeditious is apt. It is also of some significance that there is no provision for oral evidence under s. 45. While always having regard for fairness, courts and tribunals should also be mindful of cost and timeliness considerations in the conduct of proceedings before them. However, the discretion granted the Registrar in s. 45 is unfettered and, for the reasons I have given, should not be interfered with by the Court. The judicial review is dismissed.
"Marshall E. Rothstein"
Judge
Calgary, Alberta
October 28, 1997
T-2411-96
IN THE MATTER OF THE TRADE MARKS ACT
R.S.C., c. 15, c.44, as amended
BETWEEN:
FIREBOLT ENGINE INSTALLATION
CENTRES INC.
Applicant
- and -
REGISTRAR OF TRADE-MARKS
AND FEDERAL SIGNAL CORPORATION
Respondents
=========================================
REASONS FOR ORDER
==========================================
FEDERAL COURT OF CANADA
TRIAL DIVISION
COURT FILE NO.: T-2411-96
STYLE OF CAUSE: FIREBOLT ENGINE INSTALLATION
CENTRES INC.
Applicant
REGISTRAR OF TRADE-MARKS AND
FEDERAL SIGNAL CORPORATION
Respondents
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: October 28, 1997
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE ROTHSTEIN
DATED: October 28, 1997
APPEARANCES:
Gary Befus for the Applicant
John Paul Janssens for Federal Signal Corporation
Catherine Coughlan for Registrar of Trade Marks
SOLICITORS OF RECORD:
Walsh Wilkins
Calgary, Alberta for the Applicant
Smart & Biggar
Ottawa, Ontario for Federal Signal Corporation
George Thomson
Deputy Attorney General
of Canada
Ottawa, Ontario for Registrar of Trade Marks
__________________
1 In the course of argument the question of whether the tribunal was functus after it made its August 5, 1996 decision arose. However on the facts here it is apparent that the Registrar treated the August 5, 1996 decision as a provisional decision only pending submissions from the parties or, implicitly, as voidable having been made without hearing from both sides. In either case, the Registrar was not functus when the October 10, 1996 decision was made.
2 Obviously, a party to a litigious matter would normally consider it necessary to attend where the opposing party will be present to make submissions.
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