Date: 20080516
Docket: T-2216-07
Docket: T-2217-07
Citation: 2008 FC 621
Vancouver, British
Columbia,
May 16, 2008
PRESENT: The Honourable Mr. Justice Zinn
T-2216-07
BETWEEN:
CIBC WORLD MARKETS INC.
Applicant
and
STENNER FINANCIAL SERVICES LTD.
Respondent
T-2217-07
BETWEEN:
THANE STENNER
Applicant
and
STENNER FINANCIAL SERVICES
LTD.
Respondent
REASONS FOR ORDER AND ORDER
[1]
Two
expungement applications have been filed under section 57 of the Trade-marks
Act, R.S., 1985, c. T-13, to expunge the trade-mark STENNER: CIBC World
Markets Inc. v. Stenner Financial Services Ltd., Federal Court No.
T-2216-07 (the CIBC application) and Thane Stenner v. Stenner Financial
Services Ltd. Federal Court No. T-2217-07 (the Stenner application). The Applicants
in those two matters will be referred to as “CIBC” and “Stenner” and the
Respondent as “Stenner Financial”.
[2]
On February 13, 2008, Mr. Justice Lemieux, with the consent of all
parties, ordered that the two expungement proceedings be heard at same time,
and that the evidence in each proceeding would be evidence in the other.
However, the proceedings have not been consolidated. Accordingly, while I am
issuing only a single set of Reasons, they are issued with respect to each
matter.
[3]
Stenner Financial appeals the Orders of Prothonotary Lafrenière made
April 28, 2008, granting an extension of time pursuant to Rule 308 of the Federal
Courts Rules to CIBC and Stenner to conduct cross-examinations on a number
of affidavits filed by Stenner Financial, and ordering costs of $1000 payable by
Stenner Financial to each of CIBC and Stenner in any event of the cause. In
addition, the Prothonotary ordered that these two applications continue as
specially managed proceedings.
I. Introduction and Background
[4]
Early in these companion applications the relationship among counsel for
the parties was cordial and professional, as one would expect of senior
counsel. Indulgences were granted by all parties. Stenner Financial
consented to an extension of time for CIBC and Stenner to serve and file their
supporting affidavits in accordance with Rule 7 of the Federal Courts Rules.
CIBC and Stenner consented to an extension of time for Stenner Financial to
file its supporting affidavits. On Wednesday, April 2, 2008, Stenner
Financial served and filed 13 affidavits.
[5]
Rule 308 of the Federal Courts Rules provides that all parties
must complete cross-examination on affidavits within 20 days after the filing
of the respondent’s affidavits. The deadline to complete cross-examination
in these applications would thus expire on Tuesday, April 22, 2008, unless
otherwise extended by consent or order of this Court.
[6]
There is no dispute with respect to the sequence of events following the
service of the Respondent’s affidavits. They are recorded in correspondence
among the parties. It is important to set out those facts and correspondence in
some detail in order to respond fully to the Respondent’s submissions in this
appeal. The relevant facts are summarized as follows.
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April 2,
2008
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13
Affidavits are served by Stenner Financial.
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|
April 7,
2008
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Counsel for
CIBC advised counsel for Stenner Financial that he wishes to cross-examine 12
of the 13 deponents.
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|
April 8,
2008
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Counsel for
CIBC writes to counsel for Stenner Financial confirming his intention to
cross-examine 12 of the deponents. He notes the 20 day limit in the Rules and
asks whether Stenner Financial will consent to a 10-day extension. He further
inquires whether counsel will coordinate convenient dates for the
cross-examination and service of the Directions to Attend on the deponents.
Lastly, he asks that counsel provide the addresses of the deponents.
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|
April 8,
2008
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Counsel for
Stenner writes to counsel for Stenner Financial. He too expresses
his intention to cross-examine 12 of the deponents. He writes that
although the Federal Courts Rules permit an examining party to
unilaterally serve each witness, it makes more sense to coordinate the
cross-examinations as both he and counsel for CIBC intend to examine these 12
deponents. He writes:
Please advise whether you would
like to coordinate the cross-examinations of the witnesses so that they are
not being personally served with a Direction to Attend on a date that is a
surprise to them. If you are not prepared to coordinate the cross-examination
of each of these witnesses, please let me know as soon as possible, so that I
can serve them with a Direction to Attend.
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|
April 9,
2008
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Counsel for Stenner Financial
responds to both counsel advising:
We are unable to agree to the
extension requested as the writer is not available during the additional
period. Accordingly it will be necessary to seek an order from the Court. I
am sure that reasonable arrangements can be made to accommodate the
cross-examination of the various deponents.
He suggests
a restricted examination of the deponents from that proposed by counsel for
Stenner and provides the addresses for each deponent. He concludes: “We will
be pleased to provide you with available dates once the preliminary issues
are resolved”.
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|
April 10,
2008
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Counsel for Stenner responds
rejecting the time restriction proposed by counsel for Stenner Financial and
asserting that counsel for each Applicant has the absolute right to examine
all deponents until their questions are exhausted but suggests that it would
likely be the case that one counsel would take the lead and the other would
then ask his non-repetitive questions. He concludes 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 Court [sic] 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?
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|
April 11,
2008
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Counsel for
CIBC writes agreeing with the statements in the above referenced letter.
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|
April 11,
2008
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Counsel for Stenner Financial
writes to both counsel indicating that he finds the “tone of Mr. Morrison’s
[counsel for Stenner] letter to be unnecessarily hostile”. He concludes:
This will confirm that we have
available dates for the examinations but will not take on the task of
coordinating dates convenient to the witnesses and counsel which is your
responsibility. We will require strict compliance with the Federal Court
[sic] Rules.
This letter was
the first indication from counsel for Stenner Financial that he would not
cooperate in coordinating the dates for the cross-examinations and that he
was insisting on strict compliance with the time limits set out in the Rules.
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April 11,
2008
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Counsel for CIBC writes asking
counsel for Stenner Financial to agree to a 10-day extension as provided in
Rule 7(1) and advises:
If you will not consent, we
will bring a motion to the Court to extend the time and seek costs of the
motion from your client.
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|
April 14,
2008
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Counsel for
Stenner Financial responds to CIBC that “it is not possible for us to agree
to your request for a ten day extension”.
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|
April 14,
2008
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Counsel for
Stenner writes to Stenner Financial advising that:
Given the time that has elapsed
between the date on which I advised you that Mr. Stenner intends to
cross-examine each witness and your letter of Friday afternoon [April 11th]
advising that you require strict compliance of [sic] the Federal Court
[sic] Rules, I have very limited options for scheduling the
cross-examinations and I intend to apply for an order extending a deadline
(which will almost certainly be granted).
Counsel for Stenner Financial is
invited to reconsider the refusal to consent to an extension. A Direction to
Attend for Gordon Stenner, one of the deponents, is enclosed for his
cross-examination on April 22, 2008.
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|
April 15,
2008
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Counsel for Stenner Financial observes
correctly that the Direction was not served in compliance with the Rules and
advises that Gordon Stenner would not appear on the date specified in the
Direction. He writes:
Because of
your refusal to agree to reasonable limits on the cross-examination
procedures we are forced to take an equally unreasonable approach to standing
on our full rights. …
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 examine Mr.
Stenner for one day. We will make Mr. Stenner available at our office during
the week of April 28th, 2008.
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April 16,
2008
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Counsel for
CIBC and Stenner serve and file motions pursuant to Rule 8 of the Federal
Courts Rules seeking an order extending the time to cross-examine the
deponents on the affidavits filed by the Respondent in these applications.
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April 28,
2008
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The parties
appeared before Prothonotary Lafrenière who, after hearing submissions from
the parties, advised that he intended to make an order extending the deadline
for completing cross examinations. He asked the parties to discuss dates
for cross-examinations privately and return with acceptable and convenient
dates for the examinations which he would then incorporate into an order.
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April 29,
2008
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Counsel for Stenner writes to the
Court seeking reasons for the order of Prothonotary Lafrenière:
Prothonotary Lafrenière [on April 28, 2008]
ordered an extension of the deadline for the completion of
cross-examinations, as well as other relief.
An order has not been signed by Prothonotary
Lafrenière.
Murray Smith, counsel to Stenner Financial
Services Ltd. has advised … that he intends to appeal the decision of
Prothonotary Lafrenière.
The decision of Prothonotary Lafrenière was given
orally.
I respectfully request that
Prothonotary Lafrenière kindly provide written reasons for his order for the
benefit of the judge hearing the appeal.
He advises
the Court that he has communicated with both counsel prior to making this
request, that counsel to CIBC supports it and that counsel for Stenner
Financial was of the view that the request for reasons ought not to be made.
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May 2, 2008
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Prothonotary
Lafrenière issues the Reasons for Order and Order extending the time to
complete the cross-examinations, incorporating the schedule previously
provided by counsel, and ordering that these matters continue as specially
managed proceedings.
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May 2, 2008
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Stenner
Financial files its appeal from the Order of Prothonotary Lafrenière and in
the Notice of Appeal sets out the bases for the appeal.
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II. Grounds of Appeal
[7]
Stenner Financial raises three grounds of appeal:
- That
Prothonotary Lafrenière erred in granting the extension when the
affidavits filed on the motion failed to disclose any reason for the
failure to serve the Directions to Attend and complete the
cross-examinations within the 20 days provided in the Rules;
- That
Prothonotary Lafrenière erred in granting the extension when the
affidavits filed on the motion failed to establish any merit to the
underlying expungement applications; and
- That
Prothonotary Lafrenière erred in granting the extension when the
affidavits filed on the motion failed to establish any intrinsic worth in
the evidence sought on the cross-examinations.
[8]
In addition, Stenner Financial argued that Prothonotary Lafrenière erred
in that he did not give written reasons at the time he granted the extension,
he did not reserve judgment or the right to provide written reasons, and then provided
written reasons only after an appeal of his Order was brought and then over the
objection of counsel for Stenner Financial.
[9]
It is appropriate to deal with this last submission first as it could
affect the test to be applied on this appeal.
III. The Prothonotary’s Written
Reasons
[10]
Stenner Financial argued that if the Reasons for Order were improper,
then they should not be considered by this Court sitting on appeal. Relying on
the decision of Justice Mactavish in Bank of the West v. Weldga281596 (The),
2007 FC 1112, it was submitted that absent reasons for the decision below, this
Court should hear the original motion for an extension de novo.
[11]
Counsel for Stenner Financial relies on the decision of the Ontario
Court of Appeal in Regina v. Hawke (1975), 7 O.R. (2d) 145 [Hawke]
in support of his submission that it was improper for the Prothonotary to issue
reasons after the appeal was launched. He argued that it is improper to issue
reasons in such circumstances as the Prothonotary was, in effect, advocating
his position before this Court. He was attempting to pull himself up by his
boot straps. Counsel relies on the following observation of the Court of Appeal
at paragraph 110 of its decision:
In the case at bar,
it would not be unreasonable for the accused to feel that the learned trial
Judge has put himself into the appellate arena in support of his conviction. It
is to be observed that this is not a case where a trial Judge had indicated the
result that he had arrived at and announced that he proposed to give his reasons
later. In this case the trial was over, the rulings had been made after a
lengthy argument and supplementary reasons were delivered only by reason of the
appeal. In this case, the appearance of justice would have been better served
if the trial Judge had been content to let the matter stand as recorded in the
transcript of the evidence.
[12]
The facts in Hawke are significantly different than those before
me. In Hawke the accused was convicted in March 1973. Some five months
later an appeal was filed and the reasons of the trial judge were issued. The
Court of Appeal viewed these reasons as more than “mere extensive reasons for
certain rulings at trial” but found them to be more akin to a brief in support
of the conviction.
[13]
In this instance Prothonotary Lafrenière was aware prior to issuing his
reasons that an appeal was to be filed, but no appeal had yet been filed when
he issued his reasons. Accordingly, counsel’s suggestion that the Prothonotary
crafted his reasons to address the grounds of appeal is entirely without merit.
Further, unlike Hawke, Prothonotary Lafrenière issued his reasons in a
timely manner. They were issued on the Friday of the week in which the motion
was heard; it having been argued on the Monday of that week.
[14]
Counsel also relied on Virani v. Virani, 2006 BCCA 63 [Virani],
in support of his submission that no weight ought to be given to the reasons
issued by Prothonotary Lafrenière. The facts in this decision of the Court of
Appeal for British Columbia are distinguishable. In Virani the Court
of Appeal held that the judge below improperly issued “reasons expanding on
earlier reasons … after a notice of appeal is given” and following Ribeiro
v. Vancouver (City) (2004), 41 B.C.L.R. (4th) 64 at 66, 2004
BCCA 482 at ¶3, described this as “judicial individualism”. Prothonotary
Lafrenière did nothing of the sort. He had never issued any reasons or formal
order for the disposition he advised the parties at the end of the hearing that
he would be making.
[15]
The course of conduct that Prothonotary Lafrenière engaged in here is
not unique to him or to this Court. Prothonotaries have a heavy work load.
Where, as here, they are able to advise the parties of the disposition that
will be made, then it is appropriate to do so in order that further time is not
wasted awaiting the formal Order. Where, as here, time is short to complete the
cross-examinations, even with the grant of additional time, the course of
conduct adopted by the Prothonotary is all the more appropriate. Perhaps
Prothonotary Lafrenière would have been well-advised to have informed the
parties orally at the conclusion of the hearing that written reasons were to
follow, but it was not necessary to do so. Rule 392 of the Federal Courts
Rules makes it clear that an Order is not made or effective until it has
been reduced in writing and is signed by the judicial officer making it.
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392.
(1) The Court may dispose of any matter that is the subject-matter of a
hearing by signing an order.
(2) Unless it provides
otherwise, an order is effective from the time that it is endorsed in writing
and signed by the presiding judge or prothonotary or, in the case of an order
given orally from the bench in circumstances that render it impracticable to
endorse a written copy of the order, at the time it is made.
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392. (1) La Cour peut statuer sur
toute question qui fait l’objet d’une instruction en signant une ordonnance.
(2) Sauf
disposition contraire de l’ordonnance, celle-ci prend effet au moment où elle
est consignée et signée par le juge ou le protonotaire qui préside ou, dans
le cas d’une ordonnance rendue oralement en audience publique dans des
circonstances telles qu’il est en pratique impossible de la consigner, au
moment où elle est rendue.
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[16]
In this instance, no Order was signed or became effective until the date
the Reasons and the Order were formally issued.
[17]
In my view this Court is not required or entitled to review this matter de
novo. However, if that had been required, for the reasons set out below, I
would have reached the same conclusion and made the same orders as were made by
Prothonotary Lafrenière based on the materials before him.
[18]
The orders made by Prothonotary Lafrenière extending time and ordering
costs were discretionary orders: Solvay Pharma Inc. v. Apotex Inc., 2007
FC 407 [Solvay Pharma], paras. 13 and 23. As such, his orders should not
be disturbed unless they are clearly wrong in the sense that the exercise of
discretion by the Prothonotary was based upon a wrong principle or a
misapprehension of the facts: Solvay Pharma, para. 13.
[19]
Prothonotary Lafrenière applied the appropriate test for an extension of
time under the Federal Courts Rules, namely that set out in Canada
(Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.) [Hennelly].
An extension should not be granted unless four conditions are met: (1)
that there has been a continuing intention to pursue the application, (2) that
the application has some merit, (3) that no prejudice arises to the respondent
from the delay, and (4) that a reasonable explanation for the delay
exists.
[20]
The Respondent argues that the affidavits filed by Stenner and CIBC in
support of their applications for an extension failed to specifically set out a
reason for the delay, failed to establish that there was any intrinsic worth to
the proposed cross-examinations, and failed to establish evidence of the merits
of the expungement applications. Prothonotary Lafrenière found otherwise.
[21]
The position taken by the Respondent appears to be based on the premise
that the supporting affidavit on its face must set out the reason for the delay
and make some statement to support the merits of the initial application. This
premise ignores the fact that often, as in this case, there are documents
attached as exhibits to the affidavit. They too are evidence that is required
to be considered when adjudicating the motion. In fact, a bald statement that
the application has merit or that there is a reason for the delay without more is
unlikely to satisfy the Court that an extension is warranted.
[22]
Here the correspondence attached to the supporting affidavits
established quite clearly the reason for the delay. It was not necessary to set
out the obvious in the body of the affidavit. The correspondence attached
as exhibits to the affidavits, as summarized above, establishes that there was
a continuing intention on the part of Stenner and CIBC to cross-examine 12 of
the deponents. It is also clear that they were attempting to time those
examinations in a cooperative way with counsel for Stenner Financial. When
counsel for Stenner Financial advised that he would be insisting on strict
compliance with the Rules, it was 3:09 p.m. on Friday April 11, 2008. In order
to serve valid Directions to Attend on the 12 personal deponents Stenner and
CIBC would have to serve all of them within the next one hour and 41 minutes.
The correspondence and the past history of cooperation provide the entire
explanation as to the reasons for delay. Further, the Applicants moved
quickly when advised that Stenner Financial was insistent on strict compliance
to bring their motions to the Court.
[23]
Stenner Financial also complains that the motion material failed to set
out that the expungement application has “some merit”. Counsel also argued that
Prothonotary Lafrenière applied a different standard than required by Hennelly
when he held that “there is, at the very least an arguable case that the
STENNER trade-mark is not distinctive”. I find counsel’s submission to be without
merit. If anything, the Prothonotary imposed a slightly higher requirement on the
Applicants than Hennelly requires when he looked to see if they had an
arguable case.
[24]
Stenner Financial also submitted that there was nothing in the
affidavits or the exhibits from which the Prothonotary could reach his
conclusion that the case had some merit. It is submitted that this was an error
of law. That position entails accepting that the Court and Prothonotary turn a
blind eye to the material in the court record on these applications. There is
ample support for the proposition that this Court may take into consideration
materials in its own file. See for example Apotex v. Wellcome Foundation Ltd.,
[2003] F.C.J. 1551 at para. 10 and Rule 363 which expressly makes this clear. A
review of the materials filed to date in these applications quickly leads one to
the view that there is some merit in the applications, that is to say, these
applications are not clearly frivolous or obviously without merit.
[25]
Lastly, it was argued that once Stenner and CIBC had to seek leave of
this Court to extend the time for cross-examinations, they then had to show
that there was some intrinsic worth to that process. Counsel cited and relies on
President Asian Enterprises Inc. v. President Group Realty Ltd., [1997]
F.C.J. 389, aff’d [1997] F.C.J. 631 [President Asian]; Kurniewicz v.
Canada (Minister of Manpower and Immigration), [1974] F.C.J. 922; Azatian
v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. 932; Vlahou
v. Canada (Minister of Manpower and Immigration), [1977] F.C.J. 27; Taylor
Made Golf Co. v. 1110314 Ontario Inc. (c.o.b. Selection Sales), [1998]
F.C.J. 681; and Fibremann Inc. v. Rocky Mountain Spring (Icewater 02),
[2005] F.C.J. 1238 [Fibremann].
[26]
None of these cases support the position being advanced. Many, such as President
Asian deal with a situation before the Rules were amended. In those earlier
cases leave of the Court was required to cross-examine on an affidavit filed in
support of an application. Rule 91 is clear that no such consent is now
required.
[27]
Fibremann does not involve an extension at all. Rather, it was an
application to set aside an ex parte order of default judgment. The
test in such cases is much different than that for an extension of time. Most importantly,
the Federal Court of Appeal in Hennelly set out the four criteria to be considered
before an extension is to be granted. The Court of Appeal makes no mention of
any requirement that the applicant establish that there is some merit to the
proposed examination if the extension is granted.
[28]
In summary, Prothonotary Lafrenière did not exercise his discretion
based on a wrong principle or on a misapprehension of the facts.
[29]
As to the position advanced by Stenner Financial that the Prothonotary
erred in ordering that these matters continue as specially managed proceedings,
Rule 384 is a complete answer to this concern. Further, where, as here, the
litigation appears to have hit a bump in the road, that is an appropriate
course of action to be taken to ensure that the interests of justice are served
and that the litigation proceeds in an orderly way to its final disposition.
[30]
Prothonotary Lafrenière’s order as to costs was also attacked. His
reasons for making that order are the following:
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.
The most important consideration when determining
whether to grant an extension of time is the interests of justice. On the
evidence before me, the Respondent ought to 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.
In my view
Prothonotary Lafrenière was not clearly wrong in this exercise of his
discretion with respect to the award of costs and this Court will not disturb
his ruling.
[31]
Both CIBC and Stenner are seeking their costs of this appeal, payable
forthwith by the Respondent in any event of the cause. In my view, the grounds
advanced in this appeal were entirely without merit and this appeal ought not
to have been brought. Accordingly, it is appropriate that the Applicants have
their costs of this appeal in any event of the cause, and that those costs be
payable forthwith.
ORDER
THIS COURT
ORDERS that:
- This appeal
of the Order of Prothonotary Lafrenière dated May 2, 2008, extending the
time for cross-examinations is dismissed; and
- Costs of
this appeal are fixed in the amount of $2500 and are payable by the
Respondent to each Applicant forthwith and in any event of the cause.
“Russel
W. Zinn”
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