Date: 19991208
Docket: T-280-99
BETWEEN:
SIM McBURNEY
Applicant
-and-
MICROTEL LIMITED
Respondent
REASONS FOR ORDER AND ORDER
GILES ASP.
[1] The applicant in response to a notice of status review has suggested a timetable which includes the cross-examination of a witness whose affidavit has been filed in this proceeding in support of the position of the registered user of the mark. The respondent raises three issues. First, it alleges that cross-examination is not permitted. Secondly, that the cross-examination would be out of time and that a motion would be required to consider the matter of late cross-examination. Thirdly, the suggestion that the respondent should have to file a record on the same day as the applicant is challenged.
[2] In the matter or cross-examination, the respondent cites Berg Equipment Co, (Canada) Ltd v. Meredith and Finlayson (1991) 40 C.P.R. (3d) 409 and Burke-Robertson v. Carhartt Canada Ltd. (1994) 56 C.P.R. (3d) 353 as authority for the proposition that cross-examination should not be permitted. In Berg Equipment Hugessen JA, as he then was, ruled that affidavits filed before the Registrar could not be cross-examined on in this Court. The affidavit found its way to Court in that case as part of the Registrar"s materials and was not filed in that Court. The Court could not allow cross-examination on an affidavit filed in a different tribunal. Mr. Justice Huggesen also struck out affidavits filed by the party opposing the registered owner, noting that in section 45 proceedings only evidence of the registered user may be entertained. Madame Justice McGillis in Burke-Robertson indicated that the Registrar in a section 45 proceeding did not have the jurisdiction to allow cross-examination. While stating that the scope of the enquiry should not be enlarged, Mr. Justice Hugessen did not state that further evidence of the registered user could not be entertained. Here the registered user has filed an additional affidavit in this proceeding. I have therefore concluded that cross-examining in this proceeding would have been proper. However, I agree that cross-examination is now out of time and an extension of time for cross-examination should be sought.
[3] I also agree that a full 20 days after the filing of the applicant"s record should be
allowed before the respondent"s record has to be served and filed.
ORDER
[4] Being satisfied that this proceeding should continue it is ordered that it continue as a specially managed proceeding. It is further ordered that any motion for an extension of time to complete cross-examination will be brought before January 14th, 2000. If cross-examination is permitted, it should be completed by January 28th, 2000. The applicant"s record shall be filed by February 18th , 2000. The respondent"s record shall be filed by March 10th , 2000. The applicant shall apply for a hearing date by March 21st, 2000.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
December 8, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-280-99 |
| STYLE OF CAUSE: SIM McBURNEY |
- and -
| MICROTEL LIMITED |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
| AND ORDER BY: GILES A.S.P. |
DATED: WEDNESDAY, DECEMBER 8, 1999
| WRITTEN SUBMISSIONS BY: Mr. Kenneth D. McKay |
| For the Applicant |
| Mr. Brian P. Isaac |
| For the Respondent |
| SOLICITORS OF RECORD: Sim, Hughes, Ashton & McKay |
Barristers and Solicitors
330 University Avenue, 6th Floor
Toronto, Ontario
M5G 1R7
For the Applicant
| Smart & Biggar |
Barristers and Solicitors
P.O. Box 2999, Station D
55 Metcalfe Street, Suite 900
Ottawa, Ontario
K1P 5Y6
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19991208
Docket: T-280-99
Between:
| SIM McBURNEY |
Applicant
- and -
| MICROTEL LIMITED |
Respondent
REASONS FOR ORDER
AND ORDER