Immuno Concepts Inc. v. Immuno AG
T-1853-96
Tremblay-Lamer J.
26/9/96
8 pp.
Motion by respondent seeking order reviewing, setting aside Prothonotary's decision granting appellant extension of time to adduce additional evidence under Trade-marks Act, s. 56(5), Federal Court Rules, R. 704(3)-Discretionary order by Prothonotary reviewable only if clearly wrong in that based upon wrong principle or misapprehension of facts or if concerns questions vital to final issue of case-Order not concerning questions vital to final issue of case-Issue therefore whether order based upon wrong principle or misapprehension of facts-Primary purpose of R. 704(7) to enable party to obtain leave to file affidavits late, affidavits to be filed must be attached to notice of motion-Party cannot generally apply in advance for extension of time to file affidavits not in position to file forthwith-Party finding it impossible to file affidavits at proper time must inform opposing party will subsequently, when affidavits ready, file application for leave to file them late-Party may in exceptional circumstances apply to Court in advance pursuant to R. 3(1)(c) for extension of time to file affidavits not in position to file forthwith-Where party relying on exceptional circumstances, Court will be especially scrupulous, will grant motion only if notice of motion indicates reasons for delay, purpose of affidavits and use to be made of them, and if impossible to satisfy these conditions, reasons why unable to do so-In his decision, Prothonotary considered proper tests, decision cannot be found clearly wrong-Motion for review dismissed-Federal Court Rules, C.R.C., c. 663, RR. 3(1), 704(3),(7) (as am. by SOR/92-726, s. 9)-Trade-marks Act, R.S.C., 1985, c. T-13, s. 56(5).