Borden Ladner Gervais Llp. v. House of Kwong Sang Hong International Ltd.
The Court held that the precedent in Labatt's establishes the jurisdiction to compel oral cross-examination of affidavit deponents in appeals under s.56 of the Trade Marks Act; that principle survives the revised Federal Court Rules (which no longer require leave); accordingly the Motions Judge's refusal was set...
Source-derived case information.
- Citation
- 2001 FCA 346
- Parties
- Appellant: Borden Ladner Gervais LLP; Respondent: The House of Kwong Sang Hong International Limited; Respondent: The Registrar of Trade Marks
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 13 November 2001
- Procedural Posture
- Appeal Under Trade Marks Act S.56 / Appeal From Unreported Motions Judge Decision (t 583 01) to the Federal Court of Appeal
- Outcome
- Appeal allowed; decision of the Motions Judge dated July 10, 2001 set aside
- Legal Topics
- Expungement for Non Use, Cross Examination of Affidavits, Jurisdiction to Order Oral Examination, Application of Federal Court Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Borden Ladner Gervais LLP
Appellant
The House of Kwong Sang Hong International Limited
Respondent
The Registrar of Trade Marks
Respondent
Procedural Posture
Appeal Under Trade Marks Act S.56 / Appeal From Unreported Motions Judge Decision (t 583 01) to the Federal Court of Appeal
Legal Issues
- 1 Whether affidavits filed on an appeal under s.56 of the Trade Marks Act by or on behalf of the registered owner are subject to cross-examination
Ratio Decidendi
The Court held that the precedent in Labatt's establishes the jurisdiction to compel oral cross-examination of affidavit deponents in appeals under s.56 of the Trade Marks Act; that principle survives the revised Federal Court Rules (which no longer require leave); accordingly the Motions Judge's refusal was set aside and the order for cross-examination was granted, with adjusted procedural deadlines.
Court Disposition
Appeal allowed; decision of the Motions Judge dated July 10, 2001 set aside
Orders
- Order granted directing Kong Chi Ming and Mung Ping Po to appear for cross-examination on their affidavits at a time and place to be agreed by counsel or fixed by the Court
- Due date for completion of cross-examination under Rule 308 extended to December 4, 2001; subsequent due dates under Rules 309, 310 and 314 to run from December 4, 2001 or the date cross-examinations are completed, whichever is earlier
Full Case Text
Judgment text and source record
1 paragraphs
Borden Ladner Gervais Llp. v. House of Kwong Sang Hong International Ltd. Court (s) Database Federal Court of Appeal Decisions Date 2001-11-13 Neutral citation 2001 FCA 346 File numbers A-421-01 Notes Digest Decision Content Date: 20011113 Docket: A-421-01 Neutral citation: 2001 FCA 346 CORAM: STONE J.A. DÉCARY J.A. NOËL J.A. BETWEEN: BORDEN LADNER GERVAIS LLP Appellant and THE HOUSE OF KWONG SANG HONG INTERNATIONAL LIMITED and THE REGISTRAR OF TRADE MARKS Respondents Heard at Ottawa, Ontario, on November 13, 2001. Judgment delivered from the Bench at Ottawa, Ontario, on November 13, 2001. REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A. Date: 20011113 Docket: A-421-01 Neutral citation: 2001 FCA 346 CORAM: STONE J.A. DÉCARY J.A. NOËL J.A. BETWEEN: BORDEN LADNER GERVAIS LLP Appellant and THE HOUSE OF KWONG SANG HONG INTERNATIONAL LIMITED and THE REGISTRAR OF TRADE MARKS Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on November 13, 2001) DÉCARY J.A. [1] This is an appeal from an unreported decision of a Motions Judge (T-583-01, July 10, 2001). The issue is whether, in an appeal to the Trial Division under section 56 of the Trade Marks Act (R.S.C. 1985, c. T-13) of a decision of the Registrar made pursuant to section 45 (expungement for non-use), affidavits filed on the appeal by or on behalf of the registered owner are subject to cross-examination. [2] This issue has been settled by this Court in Labatt's Ltd. v. Benson & Hedges (Canada) Ltd. (1983), 75 C.P.R. (2d) 287 (F.C.A.), where Mahoney J.A. held that the Trial Division had "the jurisdiction to require the deponent of an affidavit, filed in the court, to submit to cross-examination..." (at 263). The issue was put in terms of jurisdiction because, under the Federal Court Rules then in force, leave of the Court was required in order to cross-examine a deponent (Rule 704(6)). Under the Federal Court Rules, 1998, leave of the Court is no longer required (Rule 83). The practice has changed, but the principle set out by Mahoney J.A. remains. Rules of the Court could not, in any event, have changed a principle which is founded on the interpretation of the statute itself (see Rule 1). [3] This same issue has been examined recently by Hansen J. in Sim & McBurney v. Microtel Ltd. (2000), 7 C.P.R. (4d) 260 (F.C.T.D.). We are in substantial agreement with the reasons for judgment therein. [4] The appeal will be allowed, the decision of the Motions Judge dated July 10, 2001 will be set aside and the motion of the appellant for an Order directing Kong Chi Ming and Mung Ping Po to appear for cross-examination on their affidavits at a time and place to be agreed upon by counsel, or failing any such agreement at a time and place to be fixed by the Court, will be granted. [5] The due date for completion of cross-examination under Rule 308 will be extended to December 4, 2001 and subsequent due dates in this proceeding, as prescribed by Rules 309, 310 and 314, will run from December 4, 2001, or the date upon which the cross-examinations are completed, whichever is the earlier. [6] The appellant shall have its costs here and below. "Robert Décary" J.A.