Barrigar & Oyen v. Canada ( Registrar of Trade Marks )
A-583-91
Heald J.A.
27/5/93
6 pp.
Appeal from order striking affidavit pursuant to R. 705(2) (permitting Court to make such order as seems expedient concerning conduct of proceedings) -- Barrigar & Oyen appealing Registrar's decision maintaining registration of trade mark "Citipage" to Trial Division -- Citipage filing supporting affidavit November 13, serving it on Barrigar & Oyen November 26, 1990 -- Motions Judge striking affidavit pursuant to R. 704(6) (requiring filing of affidavits within 30 days after service of applicant's affidavits i.e. September 13) -- Reasons stating appellant not filing reply although should have been filed and served by September 30 under R. 704(4) -- Stating no motion to obtain leave for late filing and service of either reply or affidavit -- R. 704(4) permitting any person "who desires to file and serve a reply" to do so within 30 days of service of originating notice of appeal -- Appeal allowed -- Case law permitting appellate interference with Motions Judge's discretion where latter proceeding on erroneous principle of law, misapprehension of facts, or decision resulting in injustice -- R. 704(4) not mandatory -- Since Citipage not obliged to file reply, time limits in R. 704(4) irrelevant -- Inference late filing and service of reply factor in Motion Judge's decision -- Such misapprehension of facts and possible reliance thereon justifying appellate intervention -- Citipage also submitting serious prejudice if decision not set aside as substantial portion of evidence would not be before Court -- Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) considered -- Federal Court Rules, C.R.C., c. 663, RR. 704(4) (as am. by SOR/79-57, s. 16), (6), 705(2).