Aircraft Technical Publishers v. ATP Aero Training Products Inc.
T-1458-95
Hargrave P.
15/7/98
9 pp.
Applicant seeking, in proceedings commenced in July 1995 to have respondent's trade mark struck out-Respondent filed reply in September 1995, but no affidavit material-Proceeding has languished since then, although parties have negotiated-Matter set to be heard in September or October 1998-Respondent now wishing both to file affidavit and crossexamine author of affidavit submitted by applicant-Application filed under old Rules but heard after new 1998 Rules had come into effect-Crux of present issue whether respondent ought to have leave to file affidavit late: right to cross-examine, under new r. 308, would then follow, without need to apply for leave-Time requirements laid down by rules of court not merely targets to be attempted: rules to be observed, particularly when non-compliance with time limits might cause prejudice to one or more of parties-At same time, overriding principle that justice must be done-On application for leave to file affidavit late, Court must consider reasons for delay and intrinsic worth of affidavit (relevance, admissibility, and potential use to court)-Upon request for leave to file document out of time, must be balancing of seriousness of delay against potential value of affidavit: Maxim's Ltd. v. Maxim's Bakery Ltd. (1990), 32 C.P.R. (3d) 240 (F.C.T.D.)-Delay herein to some degree mutual, with various attempts to reach settlement-Affidavit critical in order for respondent to mount any real opposition and likely relevant, admissible and potentially useful to court-Delay herein not that serious in view of explanations and fact delay to some extent mutual-In present case, potential value of affidavit material and reason for delay outweigh delay itself-New r. 308 now providing for cross-examination on affidavit as right, change from old R. 704(6), interpreted to require party to trade mark matter wishing to cross-examine show ambiguity or confusion in order to obtain leave-Fact respondent might not have been granted cross-examination under old Rules vesting applicant with no substantive right by which to contest cross-examination-However, while r. 308 allowing cross-examination as right, not excusing past default or failure to move with diligence to cross-examine in 1995 when affidavit and recollections fresh-Prejudice to applicant can be rectified by award of costs, including time spent by counsel to prepare author of affidavit and cost of crossexamination itself, which can only be greater now-In conclusion, considering and balancing all of factors and notwithstanding error on part of respondent, in failing to file affidavit when it ought to have done so, justice of case requiring leave to now file affidavit be granted-Costs of motion and cross-examination to applicant in any event-Federal Court Rules, C.R.C., c. 663, R. 704(6) (as am. by SOR/92-726, s. 9)-Federal Court Rules, 1998, SOR/98-106, r. 308.