Express File Inc. v. HRB Royalty Inc., 2005 FCA 47

Date: 20050203

Docket: A-364-03

A-365-03

Citation: 2005 FCA 47

CORAM:        NOËL J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

                                                           EXPRESS FILE, INC.

                                                                                                                                            Appellant

                                                                           and

                                                           HRB ROYALTY, INC.

                                                                                                                                        Respondent

                                Motion dealt with in writing without the appearance of parties.

Order delivered at Ottawa, Ontario, on February 3, 2005.

REASONS FOR ORDER BY:                                                                                            NOËL J.A.

CONCURRED IN BY:                                                                                                   NADON J.A.

                                                                                                                                 PELLETIER J.A.

Date: 20050203

Docket: A-364-03

A-365-03

Citation: 2005 FCA 47

CORAM:        NOËL J.A.

NADON J.A.

PELLETIER J.A.

BETWEEN:

                                                           EXPRESS FILE, INC.

                                                                                                                                            Appellant

                                                                           and

                                                           HRB ROYALTY, INC.

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

NOËL J.A.

[1]                The appellant moves to have the Court reconsider the judgments given on October 14, 2004 dismissing its appeals with costs in favour of the respondent. It submits that the Court inadvertently held that an argument based on the decision of this Court in Canadian Tire Corp. v. P.S. Partsource Inc. (2001), 200 F.T.R. 94, 2001 FCA 8, had not been made in the proceedings below. The appellant submits that as a result the judgments should be reconsidered and the appeals granted with one set of costs throughout in favour of the appellant.

[2]                In our view, the question whether Partsource was or was not argued below is controversial and hence cannot be assimilated to a "matter that ... had been overlooked or accidentally omitted" (Rule 397 (1)(b)). The fact that the written submissions before the protonotary and Martineau J. alluded to Partsource, as the appellant asserts, does not establish that the argument was pursued at the hearing. Indeed, Pelletier J. noted at paragraph [1] of the reasons disposing of the appeals "Before us, the appellant argued a different case, a fact confirmed by counsel for the respondent."

[3]                In addition, as the motion clearly comes within Rule 397 (1) rather than 397 (2), it had to be brought within 10 days after the issuance of the Judgments. As the respondent points out, it was not and the appellant has provided no reasons to explain the delay.

[4]                The motions for reconsideration will be dismissed with one set of costs.

               "Marc Noël"                     

J.A.

"I agree.

            M. Nadon, J.A."

"I agree.

J.D.Denis Pelletier, J.A."

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS:                                         A-364-03

A-365-03

STYLE OF CAUSE:               Express File, Inc. v. HRB Royalty, Inc.

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES.

REASONS FOR ORDER:                Noël J.A.

CONCURRED IN BY:                      Nadon J.A.

Pelletier J.A.

DATED:                                              February 3, 2005

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: