Date:20010221
Docket: T-1564-97
T-1565-97
Neutral Citation : 2001 FCT105
BETWEEN:
CANADIAN OLYMPIC ASSOCIATION
Appellant
- and -
OLYMEL, SOCIÉTÉ EN COMMANDITE
and
THE REGISTRAR OF TRADE-MARKS
Respondents
REASONS FOR ORDER
HENEGHAN J.
INTRODUCTION
| [1] Canadian Olympic Association ("COA") filed a Notice of Motion dated September 13, 2000 seeking an order for an extension of time within which to file its Notice of Appeal from the decision of Mr. Justice Lemieux delivered in this proceeding on June 9, 2000. |
| [2] Olymel, Société En Commandite (the "Respondent")1 objected to the Appellant's request for consent to the extension of time. The Respondent continues to oppose the Appellant's Notice of Motion. |
FACTS
| [3] The within matter relates to two oppositions filed by the Appellant in 1992 and 1993 to the Respondent's applications to register the trade-marks OLYMEL and OLYMEL & Design. The decision of the Opposition Board was delivered on May 21, 1997, in favour of the Respondent. |
| [4] Upon appeal to the Federal Court of Canada, Trial Division, the Respondent was likewise successful. The decision of Justice Lemieux was delivered on July 9, 2000. |
| [5] Section 27(2)(b) sets out the time limits for filing a notice of appeal from a final judgment, as follows: |
| 27(2) An appeal under this section shall be brought by filing a notice of appeal in the Registry of the Court (b) in any other case, within thirty days, in the calculation of which July and August shall be excluded, |
(2) L'appel interjeté dans le cadre du présent article est formé par le dépôt d'un avis au greffe de la Cour, dans le délai imparti à compter du prononcé du jugement en cause ou dans le délai supplémentaire que la Section de première instance ou la Cour canadienne de l'impôt, selon le cas, peut, soit avant soit après l'expiration de celui-ci, fixer ou accorder. Le délai imparti est de: b) trente jours, compte non tenu de juillet et août, dans le cas des autres jugements. |
| [6] The time for filing the Notice of Appeal in this case would have been September 11, 2000, since the thirty day period calculated in accordance with section 27(2)(b) would have expired on September 9, 2000, a Saturday. |
| [7] The Notice of Appeal was not filed by September 11 as the result of a mistake made by counsel for the Appellant in recording the filing date. Mr. McKay had recorded the filing date as September 12 and did not discover the error in his calculation of the time limited until after business hours on that date. |
| [8] Mr. McKay contacted counsel for the Respondent on the following day seeking consent to an extension of time for the filing of the Notice of Appeal. The Notice of Motion is dated September 12, 2000 and the supporting Affidavit of Mr. McKay is dated September 13. According to that Affidavit, Mr. McKay took immediate steps to find a remedy for the missed deadline as soon as he became aware of it. He assumed responsibility for the error in calculating the time and set about addressing the problem as soon as possible. |
| [9] Because the time for filing an appeal is set by the Act, it can only be extended pursuant to a notice of motion for an order to extend the time. Such an order is one within the discretion of the Court. The consent of an opposing party to a motion for a discretionary order is, of course, not binding upon the Court but is certainly a matter to be taken into account. Such consent was not forthcoming in this case. |
| [10] On the contrary, the Respondent vigorously opposes the motion, on the ground that the Appellant has not met the test for the exercise of discretion in its favour. |
| [11] In Sim v. The Queen (1996), 67 C.P.R. (3d) 334 at page 336 Prothonotary Hargrave reviewed the six factors to be taken into account upon a motion to extend a time limit: |
| 1. Whether the appeal itself has merit; there must be arguable issues to put before the Court of Appeal; |
| 2. The special circumstances showing or explaining why the appeal was not brought within the required time; |
| 3. The intention of the plaintiff to appeal existed before the time for appeal ran out; |
| 4. Whether the delay has been excessive; |
| 5. Whether the Crown will be prejudiced by an extension of time within which to appeal; and |
| 6. Whether it is in the interests of justice to grant the time extension. |
| [12] The first point to be considered is whether the proposed appeal has merit. In other words, does the appeal raise an arguable issue. The Appellant's argument on that point is that certain errors were made by the learned Trial Judge in his interpretation of section 9 of the Trade-marks Act, R.S., c. T-10, s. 1. The nature of these errors is set out in the Notice of Appeal sought to be filed and in the written representations filed by the Appellant dated November 7, 2000. The alleged errors relate to the alleged misinterpretation by Justice Lemieux of the decision of the Federal Court of Appeal in Techniquip Ltd. v. Canadian Olympic Assn. (1999), 250 N.R. 302; (1999) 3 C.P.R. (4th) 298. |
| [13] The Respondent argues that it was successful in its submissions before the Opposition Board and again before Justice Lemieux, sitting as the Appeal Court from the decision of the Board. In effect, the Respondent seems to argue that because it has been successful to date in resisting the arguments of the Appellant, there is no merit in any further debate on the issues raised in the application by the Respondent to register the trade-marks in question. |
| [14] I do not accept these submissions. I am satisfied that the proposed Notice of Appeal raises an arguable issue relating to the interpretation of the Trade-marks Act, supra. |
| [15] Second, are there special circumstances or a reasonable explanation which explain why the appeal was not filed in time. As noted above, it appears that the error in recording the date for filing the appeal was made Mr. McKay. When the error was discovered, counsel for the Appellant contacted counsel for the Respondent, seeking consent to the late filing of the appeal. This consent was denied. Counsel for the Appellant then filed a Notice of Motion on September 13. |
| [16] In my opinion, the reasonableness of the explanation must be assessed in relation to the event causing the filing date to be missed. What was the cause of the problem? It was due to the error of counsel in recording the due date. His response to discovery of that error was prompt and reasonable. It was counsel's responsibility to see that the Notice of Appeal was filed in time but through his error in recording the date in his diary, the prescribed time was missed. |
| [17] Despite the efforts by Counsel for the Respondent to shake the explanation offered by Mr. McKay, he did not do so. Mr. McKay was consistent in his explanation as to why the filing date was missed. He was also frank as to the nature of his mistake. In Thom Pac Inc. v. Kem-A-Trix Lubricants Inc. [1997] F.C.J. 937, Justice Dubé found that an error by counsel, that is the inability to file an appeal because counsel suffered from depression, was a reasonable explanation. Furthermore, the failure by counsel to meet a deadline must also be assessed from the point of view of his client who will have to bear the consequences. |
| [18] In the circumstances of the present case, I am satisfied that a reasonable explanation has been offered for the failure of counsel for the Appellant to file the Notice of Appeal in time. |
| [19] Third, I must consider whether there was a previous intention by the Appellant to appeal before the time for doing so expired; see Shepherd v. Canada (Solicitor General) [1990] 34 F.T.R. 134. |
| [20] In a letter dated June 14, 2000 written by Mr. McKay and included in the Appellant's Supplementary Motion Record, Mr. McKay recommended that the decisions of Justice Lemieux be appealed and advised that the date for filing the appeal was July 10, 2000. |
| [21] Clearly, this letter shows that there was an intention to appeal before the time expired. |
| [22] Fourth is the issue whether the delay was excessive. The Appellant missed the filing time by one day which the Respondent, with reluctance, concedes is not an excessive delay. Otherwise, the Respondent argues that the Appellant has failed to lead sufficient evidence on all the other issues. |
| [23] In light of section 27(2)(b), the months of July and August are not to be calculated in computing the thirty day period limited for filing a notice of appeal. The length of the delay is not to be assessed against the "straight time" period July 9 to September 12. As noted above, the Notice of Appeal should have been filed by September 11 and it was not. The delay was one day and it is not excessive. |
| [24] The fifth factor is whether the Respondent would be prejudiced by an extension of time within which to appeal. The Respondent's argument on this point is that final resolution of the litigation would be delayed by approximately twelve months if the Appellant is allowed to file its Notice of Appeal and proceed with the conduct of the appeal. |
| [25] I do not see how this constitutes prejudice. If the appeal is dismissed, the Respondent will have a final judgment in its favour. If the appeal is allowed, then the Respondent has simply lost its case, which is a risk of litigation. The dispute between the parties has been ongoing for many years. If the Notice of Appeal had been filed in time, that is some twenty-four hours prior to the discovery of the mistake by Appellant's counsel, the Respondent would still have to await the outcome of the proceedings in the Court of Appeal. |
| [26] The Respondent has not shown that it would be prejudiced. On the other hand, if this application for an extension of time is dismissed, there is the potential of real prejudice to the Appellant. On the basis of the evidence before me, the Appellant is not responsible for the mistake giving rise to this application for an extension of time. The mistake is that of its counsel. |
| [27] I find that when considering the issue of prejudice, the balance of convenience lies in favour of the Appellant. |
| [28] The final point for consideration is whether it is in the interests of justice to grant the time extension. That point was considered by Justice McNair in National Bank of Greece S.A. v. Polar Paraguay (The) [1986] F.C.J. No. 306. |
| [29] That case also involved an application for an order extending the time for filing a Notice of Appeal from a decision refusing the extension of time for filing affidavits of claim against the proceeds from the sale of the ship. The delay in that case was also due to the honest mistake by a solicitor. There the court said as follows: |
In my opinion, the applicants have clearly established that they have formed an intention to appeal by February 12, 1986. The mistake lay in the means chosen to prosecute the appeal. The applicants should have filed a separate notice of appeal immediately after they were served with notice of the respondent's appeal on January 24, 1986. The intention to appeal was formed on February 12, only 19 days or thereabouts after the time for appeal had expired. True, there is no specific explanation or accountable reason for the 19 days' delay. Nonetheless, it is my view that a party should not be foreclosed from a discretionary remedy by the strict application of legal rules pertaining to the time within which the remedy must be sought, where the delay is not excessive and there is some cogent evidence of a bona fide intention to exercise that remedy formed soon after the expiry date thereof. Courts are somewhat reluctant to banish a player from the game because of honest mistake or inadvertent oversight on the part of his solicitor.
[30]The Appellant takes the view that the interests of justice favours the exercise of discretion by the court, to grant an order extending the time period for filing the Notice of Appeal.
[31]In opposition, the Respondent argues that it is not in the interests of justice to grant the extension of time because the interests of justice favour the finalization of the two trade-mark matters. Further, it would be contrary to the interests of justice to deprive the Respondent of the benefit of the appeal limitation.
[32]In my view, the Respondent has mischaracterized the situation in making the foregoing argument. This type of submission more properly belongs to the argument on the issue of prejudice.
[33]In my opinion, it is in the interests of justice to allow the appeal to be heard on its merits. When there is an arguable case, it should not fail on the basis that a lawyer made a mistake in the matter of recording the date for filing the notice of appeal.
[34]In conclusion, I am not persuaded by the arguments made by the Respondent. The order sought by the Appellant is granted.
[35]The question of costs must be considered. Rule 410(2) of the Federal Court Rules, 1998 applies in this case. That rule provides as follows:
| 410(2) Unless the Court orders otherwise, the costs of a motion for an extension of time shall be borne by the party bringing the motion. |
410(2) Sauf ordonnance contraire de la Cour, les dépens afférents à une requête visant la prolongation d'un délai sont à la charge du requérant. |
[36]Having regard to the efforts made by the Appellant to seek a speedy and expeditious resolution to the problem created by its lawyer, the lengthy and periodically irrelevant cross-examination conducted of Mr. McKay and the fairly lengthy hearing on this motion, I set costs in the amount of $1500.00 payable by the Appellant to the Respondent forthwith and in any event of the cause.
[37]An Order shall issue accordingly.
[38]These reasons will be filed in T-1564-97 and placed on T-1565-97 and have the same force and effect as if it were filed.
"E. Heneghan"
J.F.C.C.
Halifax, Nova Scotia
February 21, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT NO: T-1564-97, T-1565-97 |
| STYLE OF CAUSE: Canadian Olympic Association v. Olymel,Société En Commandite |
and The Registrar of Trade-Marks
| PLACE OF HEARING: Toronto, Ontario |
| DATE OF HEARING: January 15, 2001 |
| REASONS FOR ORDER BY: Heneghan, J. |
| DATED: February 21, 2001 |
APPEARANCES:
Kenneth McKay for the Appellant
J. Guy Potvin for the Respondents
SOLICITORS OF RECORD
Sim, Hughes, Ashton & McKay for the Appellant
Toronto, ON
Potvin Law Office
Ottawa, ON for the Respondents
__________________1The Registrar of Trade-marks did not participate in this motion.