PRACTICE |
Affidavits |
Sim & McBurney v. Microtel Ltd.
T-280-99
Hansen J.
23/6/00
5 pp.
Appeal from Associate Senior Prothonotary's decision cross-examination on affidavit by registered user of trade-mark on appeal from Registrar of Trade-marks' decision expunging in part respondent's trade-mark should be allowed--On appeal from Registrar's decision respondent filed further affidavit to supplement evidence before Registrar--Prior to 1998, Federal Court Rules 700 to 705 governing appeals under Trade-marks Act--R. 704(6) requiring leave of Court to cross-examine on affidavits--Federal Court Rules, 1998, r. 83 permitting cross-examination of deponent of affidavit filed on application--Purpose, scope of Trade-marks Act, s. 45 to provide simple, expeditious method of removing from register marks which have fallen into disuse--Appeal pursuant to s. 56 not enlarging scope of inquiry (Austin Nichols & Co., Inc. v. Cinnabon Inc., [1998] 4 F.C. 569 (C.A.))--In many instances in past, Court granting leave to cross-examine on affidavit--Amendment to rules removing leave requirement neither altering summary nature of proceedings taken pursuant to s. 45 nor expanding scope of relevant evidence contemplated under s. 45--New Rules contemplating procedure itself summary in nature--If ambiguities in affidavit, preferable to have clarification rather than to leave Court speculating as to factual situation--As cross-examination permitted in past, rule change not resulting in change in practice argued by respondent--Appeal dismissed--Federal Court Rules, 1998, SOR/98-106, r. 83--Federal Court Rules, C.R.C., c. 663, R.704(6) (as am. by SOR/92-726, s. 9)--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 45 (as am. by S.C. 1993, c. 44, s. 232; 1994, c. 47, s. 200), 56.