Auto Mart Magazine Limited v. Arthur, docket A-534-96

     A-534-96

CORAM:      STRAYER J.A.

     DÉCARY J.A.

     McDONALD J.A.

B E T W E E N:

     AUTO MART MAGAZINE LIMITED

     Appellant

     (Applicant)

     " and "

     ALEXANDER K. ARTHUR

     Respondent

     (Opponent)

HEARD at Ottawa, Ontario, on Wednesday, September 10, 1997

JUDGMENT delivered from the Bench on Wednesday, September 10, 1997

REASONS OF THE COURT BY:      STRAYER J.A.

     A-534-96

CORAM:      STRAYER J.A.

     DÉCARY J.A.

     McDONALD J.A.

B E T W E E N:

     AUTO MART MAGAZINE LIMITED

     Appellant

     (Applicant)

     " and "

     ALEXANDER K. ARTHUR     

     Respondent

     (Opponent)

     REASONS FOR JUDGMENT

     (Delivered from the Bench at Ottawa, Ontario

     on Wednesday, September 10, 1997)

STRAYER J.A.

     Notwithstanding the thorough argument of counsel for the appellant we are all of the view that this appeal must be dismissed.

     This is an appeal from an interlocutory decision of the Trial Division refusing an extension of time for the appellant to serve a notice of appeal under subsection 56(3) of the Trade Marks Act on the respondent. The respondent had successfully opposed the registration of the appellant's trade mark before the Registrar of Trade Marks. The appellant sought to appeal that decision of the Registrar to the Trial Division but failed to serve the respondent in time. On an application to the Trial Division for an extension of time for service, the motions judge refused the extension noting in her order that the appellant had "failed to establish that the appeal discloses a fairly arguable case".

     This was a discretionary decision of the motions judge and there are only limited grounds upon which this Court should intervene in such decisions, none of which exist here. It was for the motions judge to balance the various discretionary factors relevant to an extension of time. On the basis of the material she had before her it was certainly open to her to find that the appellant had not demonstrated that it had a fairly arguable case and to treat that as determinative. Whether this Court would have exercised the discretion in the same way is not relevant.

     The appeal should therefore be dismissed but without costs, the respondent not having participated.

                                 J.A.