Dayton Boot Co. Enterprises Ltd. v. Red Cat Ltd.

Dayton Boot Co. Enterprises Ltd. v. Red Cat Ltd.

The motion to stay was dismissed because the moving party failed to establish that continuation of the application would cause prejudice or injustice; the Court found only partial overlap between the bankruptcy proceedings and the judicial review, the central issue here is whether the Registrar erred (which this Court must decide), HGC provided no evidence of real prejudice if the stay were refused, and HGC's affidavits contained inadmissible hearsay and were of limited weight; accordingly this was not a clear case for a stay and the application was ordered set down for hearing.

Citation
2017 FC 973
Parties
Applicant: Dayton Boot Co. Enterprises Ltd.; Respondent: Red Cat Ltd.; Respondent: Dayton Boot Brands Ltd.; Respondent: Roderick Hall Risk; Respondent: Hutchingame Growth Capital Corporation
Court
Federal Court
Jurisdiction
Canada
Judgment Date
31 October 2017
Procedural Posture
Judicial Review Trade Marks Registration / Motion to Stay Dismissed; Application Set Down for Hearing
Outcome
Motion dismissed; costs awarded to Applicant; application set down for hearing.
Legal Topics
Change of Title of Trade Mark, Registrar Decision Review, Stay Pending Related Proceedings, Admissibility and Weight of Affidavit Evidence, Costs
Source Language
English
Trade Marks Law Bankruptcy and Insolvency Administrative Law Evidence Civil Procedure Change of Title of Trade Mark Registrar Decision Review Stay Pending Related Proceedings +2 more

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Parties

Dayton Boot Co. Enterprises Ltd.

Applicant

Red Cat Ltd.

Respondent

Dayton Boot Brands Ltd.

Respondent

Roderick Hall Risk

Respondent

Hutchingame Growth Capital Corporation

Respondent

Procedural Posture

Judicial Review Trade Marks Registration / Motion to Stay Dismissed; Application Set Down for Hearing

Legal Issues

  1. 1 Whether a stay should be granted under s.50(1) of the Federal Courts Act pending bankruptcy proceedings
  2. 2 Whether continuation of this application would cause prejudice or injustice to the moving party
  3. 3 Whether the Registrar erred in recording the change in title of the trade-mark based on a redacted document

Ratio Decidendi

The motion to stay was dismissed because the moving party failed to establish that continuation of the application would cause prejudice or injustice; the Court found only partial overlap between the bankruptcy proceedings and the judicial review, the central issue here is whether the Registrar erred (which this Court must decide), HGC provided no evidence of real prejudice if the stay were refused, and HGC's affidavits contained inadmissible hearsay and were of limited weight; accordingly this was not a clear case for a stay and the application was ordered set down for hearing.

Court Disposition

Motion dismissed; costs awarded to Applicant; application set down for hearing.

Orders

  • Motion dismissed, with costs payable forthwith by Hutchingame Growth Capital Corporation to the Applicant fixed at $1,500.00.
  • This application shall be set down for hearing by the Office of the Chief Administrator for a 4 hour hearing in Vancouver, no later than January 31, 2018.