Date: 20080502
Docket: T-2217-07
Citation: 2008
FC 573
Vancouver, British
Columbia, May 2, 2008
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
THANE
STENNER
Applicant
and
STENNER
FINANCIAL SERVICES LTD.
Respondent
REASONS FOR ORDER AND ORDER
[1]
The facts underlying
the motion by the Applicant, Thane Stenner, for an extension of time to conduct
cross-examinations of the Respondent’s deponents are not in dispute.
[2]
Thane Stenner brought an application to expunge the Respondent’s
trade-mark STENNER on December 19, 2007. CIBC World Markets Inc. (CIBC)
commenced a similar proceeding against the Respondent on December 20, 2007 in
Court File No. T-2216-07.
[3]
The Respondent,
Stenner Financial Services Ltd., filed a Notice of Appearance in opposition to both
proceedings on January 2, 2008. On consent of the parties, Mr. Justice François
Lemieux ordered that the two matters be heard together on common evidence on
February 13, 2008. Around the same time, the Respondent consented to an
extension of time for the two Applicants to serve and file their supporting
affidavits in accordance with Rule 7 of the Federal Courts Rules. Rule 7
provides that most periods stipulated by the Rules may be extended once
for up to half the time period in question simply by filing the written consent
of the parties.
[4]
After the Applicants
served and filed their supporting affidavit evidence within the extended deadline,
the Respondent obtained the Applicants’ consent to an extension of time to comply
with Rule 307. The Respondent accordingly served and filed its responding
evidence, consisting of thirteen (13) affidavits, on April 2, 2008.
[5]
Rule 308 provides
that all parties must complete cross-examination on affidavits within 20 days
after the filing of the respondent’s affidavits. It is common ground that the
deadline to complete cross-examinations would expire on April 22, 2008, unless otherwise
extended either on consent or by court order.
[6]
Within three (3)
business days of service of the Respondent’s affidavits, counsel for CIBC, Mr.
Stephen Warnett, informed Respondent’s counsel, Mr. Murray L. Smith, that the
Applicants intended to cross-examine all but one of the thirteen (13) deponents.
Mr. Warnett sent a confirmatory letter to Mr. Smith on April 8, 2008. He requested
that Mr. Smith consent to a 10-day extension to conduct cross-examination, and also
solicited his cooperation in coordinating convenient dates for
cross-examination and service of Directions to Attend. Mr. Andrew Morrison, counsel
for Thane Stenner, made a similar request that same day.
[7]
On April 9, 2008, Mr.
Smith forwarded a letter to Applicants’ counsel to advise them that he could
not agree to the 10-day extension as he was not available during that period
and that “it will be necessary to seek an order from the Court”. While stating
that he is confident that reasonable arrangements could be made to accommodate
the cross-examination of the deponents, Mr. Smith expresses concerns about what
he views as the Applicants’ “excessive” and “oppressive” demands to cross-examine.
He requests that the Applicants agree to restrict the examination of George
Stenner to one half day, and those of “minor deponents” to 30 minutes, and that
only one cross-examination be conducted on behalf of both Applicants. Mr. Smith
indicates that he will provide available dates “once the preliminary issues are
resolved.”
[8]
Mr. Morrison replied by letter the following day. He advised Mr.
Smith that he was not prepared to agree to the proposed time limits on
examinations or to limit cross-examinations to only one counsel on behalf of
both Applicants. Mr. Morrison indicated, however, that he expected that
cross-examinations of each of the non-party deponents would take no longer than
30 minutes to complete, and that counsel for the Applicants would work together
to avoid covering the same ground. He concluded his letter as follows:
With
respect to the timing of the cross-examinations, are you and the witnesses
available prior to the deadline imposed by the Federal Courts Rules?
If
not, please contact me so that we can discuss your availability and the
availability of the witnesses, and whether you will consent to an extension of
the deadline so that I can file a request for an order extending the deadline.
[9]
By letter to
Applicants’ counsel dated April 11, 2008, Mr. Smith took exception to the tone
of Mr. Morrison’s letter, which he characterized as “unnecessarily hostile”. He
confirmed that his law firm had available dates for the examinations, but that
he would not take on the task of coordinating dates convenient to the witnesses
and counsel. He also gave notice that the Respondent would require strict
compliance with the Rules.
[10]
Mr. Warnett responded
by letter the same day and again requested that Mr. Smith consent an extension
of time. On April 14, 2008, Mr. Smith wrote back to advise that it was not
possible for him to agree to the Applicants’ request for a ten day extension for
the reasons given in his letter dated April 9, 2008.
[11]
On April 14, 2008
both Applicants delivered letters to Mr. Smith enclosing Directions to Attend
requiring Gordon Stenner to attend for cross-examination on his affidavit on
April 22, 2008.
[12]
On April 15, 2008,
Mr. Smith wrote to advise that Gordon Stenner would not attend because he (Mr.
Smith) was out of town on the appointed date, and the Direction to Attend was
not in compliance with the requirements of the Rules. Mr. Smith refers
to the requirement in Rule 91(3)(b) that a Direction to Attend on a non-party
must be served at least ten (10) days before the day of the proposed
examination. Mr. Smith leaves open the possibility of cross-examinations taking
place in the future, but only on the following conditions:
We
are still prepared to reasonably accommodate cross-examination in this matter
but we repeat that the Applicants who are joined in this proceeding at their
own request may not tag-team their cross-examination. You may choose one
lawyer to examined Mr. Stenner for one day. We will make Mr. Stenner available
at our offices during the week of April 28th, 2008.
Positions of the parties
[13]
The Applicants submit
that they have a valid explanation for their delay in conducting
cross-examinations. They notified the Respondent promptly of their intention to
cross-examine the Respondent’s deponents, and made reasonable attempts to
coordinate and schedule cross-examinations. The Applicants also submit that
they have maintained a continued intention to conduct cross-examinations, as
evidenced by the exchange of correspondence between counsel for the parties. Further,
they maintain that the Respondent would not be prejudiced if an extension of
time is granted.
[14]
The Respondent
counters that the Applicants have failed to act with due diligence and have
provided no explanation for their delay in conducting cross-examination within
the time provided in Rule 306. It also contends that where a party is applying
for the Court’s permission to conduct cross-examinations, there must be
evidence to show that cross-examination is necessary. The Respondent submits
that the Applicants have failed to establish any ambiguity or confusion in the
Respondent’s affidavits that requires clarification.
Analysis
[15]
The only issue to be
determined on this motion is whether an extension of time should be granted to
the Applicant to conduct cross-examination of the Respondent’s deponents.
[16]
As a general rule,
the test for determining whether an extension of time should be granted is
whether an applicant has demonstrated a continued intention to pursue the
application, that the application has some merit, that no prejudice to the
respondent arises from the delay, and that a reasonable explanation for the
delay exists: Canada (Attorney General) v. Hennelly, [1999] F.C. J. No.
846 (C.A.). The emphasis to be given to the four factors will vary, however,
with the circumstances in each case.
[17]
With respect to the
first factor, it is clear from the evidence before me that the Applicants maintained
continued intention to cross-examine on the Respondent’s affidavits. In their
numerous letters to Mr. Smith, counsel for the Applicants consistently and
firmly asserted their respective client’s intention to cross-examine.
[18]
As for the merits of
the application, there is, at the very least, an arguable case that the STENNER
trade-mark is not distinctive. In any event, there is no requirement on the
Applicants to seek leave to cross-examine, or to demonstrate that
cross-examination is necessary. The Applicants have an absolute right to
cross-examine each of the Respondent’s deponents, provided they do so with due
diligence.
[19]
Turning to the third
factor, I am satisfied that the Respondent would not be prejudiced if the time
for completion of the Applicants’ cross-examination is granted. The extension
of time requested by the Applicants is relatively short and will not
significantly delay the proceeding.
[20]
Finally, in terms of
explanation for the delay, the Applicants have fully accounted for their
failure to conduct cross-examinations by April 22, 2008. Faced with a dozen
deponents to cross-examine and a tight timeframe within which to complete them,
the Applicants promptly contacted the Respondent to request its consent to an
extension of time and to schedule the cross-examinations in an efficient and
expedient manner. When the Respondent refused to cooperate, the Applicants took
steps to schedule the cross-examination of George Stenner, but to no avail, and
then moved without delay for an extension of time. The Respondent’s position
that the Applicants failed to act with due diligence is wholly without merit.
[21]
The Respondent unreasonably
refused to consent to an extension of the deadline for completing cross-examinations
or to facilitate cross-examinations. It also unfairly set up procedural
obstacles, under the guise of “strict compliance with the Rules”, in a clear attempt
to extract concessions from the Applicants. Such tactics are inappropriate and
should not be condoned.
[22]
The most important
aspect to consider when determining whether to grant an extension of time is
the interests of justice. On the evidence before me, the Respondent ought
properly have acceded to the Applicants’ reasonable requests. In the exercise
of my discretion, I am satisfied that the motion for extension of time should
be granted, with costs to the Applicants in any event of the cause.
ORDER
THIS COURT ORDERS
that
1.
The time provided
under Rule 308 of the Federal Courts Rules within which the Applicant
shall complete his cross-examinations of deponents of affidavits served and
filed by the Respondent is extended to June 30, 2008, or the date of completion
of those cross-examinations, whichever is earlier.
2.
The application shall
continue as a specially managed proceeding.
3.
The Applicant is
granted leave to serve a Direction to Attend on Gordon Stenner that requires
Gordon Stenner to attend for cross-examination on his affidavit on Wednesday,
May 28, 2008 at 9:30 a.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
4.
The Applicant may
serve the Direction to Attend on Gordon Stenner by delivering the document to
the Respondent’s address for service.
5.
No witness fees need
be paid or tendered to Gordon Stenner in connection with the cross-examinations
on his affidavit to be conducted by the Applicant in this proceeding and by the
Applicant in Federal Court No. T-2217-07.
6.
The Applicant is
granted leave to serve a Direction to Attend on Tore Jorgensen that requires
Tore Jorgensen to attend for cross-examination on his affidavit on Thursday,
May 29, 2008 at 9:00 a.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Tore Jorgensen is entitled to only one set of witness fees in the amount of
$60.00 for his attendance for the cross-examinations on his affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
7.
The Applicant is
granted leave to serve a Direction to Attend on Mary Wareham that requires Mary
Wareham to attend for cross-examination on her affidavit on Thursday, May 29,
2008 at 10:00 a.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Mary Wareham is entitled to only one set of witness fees in the amount of
$60.00 for her attendance for the cross-examinations on her affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
8.
The Applicant is
granted leave to serve a Direction to Attend on Frank Stuber that requires him
to attend for cross-examination on his affidavit on Thursday, May 29, 2008 at
11:00 a.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Frank Stuber is entitled to only one set of witness fees in the amount of
$70.00 for his attendance for the cross-examinations on his affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
9.
The Applicant is
granted leave to serve a Direction to Attend on Kim Sigurdson that requires him
to attend for cross-examination on his affidavit on Thursday, May 29, 2008 at
12:00 p.m. (noon) at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Kim Sigurdson is entitled to only one set of witness fees in the amount of
$30.00 for his attendance for the cross-examinations on his affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
10.
The Applicant is
granted leave to serve a Direction to Attend on Manley H. Gerow that requires
him to attend for cross-examination on his affidavit on Thursday, May 29, 2008
at 2:00 p.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Manley H. Gerow is entitled to only one set of witness fees in the amount of
$50.00 for his attendance for the cross-examinations on his affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
11.
The Applicant is
granted leave to serve a Direction to Attend on Graham E. Hanson that requires
him to attend for cross-examination on his affidavit on Thursday, May 29, 2008
at 3:00 p.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Graham E. Hanson is entitled to only one set of witness fees in the amount of
$60.00 for his attendance for the cross-examinations on his affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
12.
The Applicant is
granted leave to serve a Direction to Attend on Robert Vance that requires him
to attend for cross-examination on his affidavit on Friday, May 30, 2008 at
9:00 a.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Robert Vance is entitled to only one set of witness fees in the amount of
$60.00 for his attendance for the cross-examinations on his affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
13.
The Applicant is
granted leave to serve a Direction to Attend on Brenda Lynn Lloyd that requires
her to attend for cross-examination on her affidavit on Friday, May 30, 2008 at
10:00 a.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Brenda Lynn Lloyd is entitled to only one set of witness fees in the amount of
$80.00 for her attendance for the cross-examinations on her affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
14.
The Applicant is
granted leave to serve a Direction to Attend on Raj S. Cheema that requires him
to attend for cross-examination on his affidavit on Friday, May 30, 2008 at
11:00 a.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Raj S. Cheema is entitled to only one set of witness fees in the amount of
$30.00 for his attendance for the cross-examinations on his affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
15.
The Applicant is
granted leave to serve a Direction to Attend on Robert Schmunk that requires
him to attend for cross-examination on his affidavit on Friday, May 30, 2008 at
12:00 p.m. (noon) at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
Robert Schmunk is entitled to only one set of witness fees in the amount of
$60.00 for his attendance for the cross-examinations on his affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
16.
The Applicant is
granted leave to serve a Direction to Attend on James L. Hamilton that requires
him to attend for cross-examination on his affidavit on Friday, May 30, 2008 at
2:00 p.m. at the offices of Borden Ladner Gervais LLP at 1200 - 200 Burrard Street, Vancouver, British Columbia.
James L. Hamilton is entitled to only one set of witness fees in the amount of
$720.00 for his attendance for the cross-examinations on his affidavit to be
conducted by the Applicant in this proceeding and by the Applicant in Federal
Court No. T-2217-07.
17.
Without further order
of this court, the parties may consent to the Applicant in this proceeding and
the Applicant in Federal Court No. T-2217-07 serving Directions to Attend on
deponents of affidavits served by the Respondent that require a deponent to
attend for cross-examination on his or her affidavit on a date or time that is
different than that set out in this order.
18.
Costs of the motion
in the amount of $1,000.00 are payable by the Respondent in any event of the
cause.
“Roger R. Lafrenière”
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