T-2943-79
B & E Furniture Manufacturing Co. Ltd.
(Applicant)
v.
Goldcrest Furniture Ltd. (Respondent)
Trial Division, Grant D.J.—Toronto, September
24 and October 3, 1979.
Practice — Industrial design — In proceedings commenced
by originating notice of motion for order to expunge or vary
under s. 22 of the Industrial Design Act, application made by
Goldcrest Furniture Ltd. to quash B & E Furniture Manufac
turing Co. Ltd.'s application on the ground that it is not the
proper subject matter for an originating notice of motion —
Procedure commenced by originating notice of motion not
available when subject matter is within s. 22 of the Industrial
Design Act — Application allowed — Industrial Design Act,
R.S.C. 1970, c. 1-8, ss. 22, 23 — Federal Court Rules 400,
702(1),(2).
APPLICATION.
COUNSEL:
Arlen Charles Reinstein for applicant
(respondent on motion).
Harry Perlis for respondent (applicant on
motion).
SOLICITORS:
Arlen Charles Reinstein, Toronto, for appli
cant (respondent on motion).
Atlin, Goldenberg, Cohen & Armel, Toronto,
for respondent (applicant on motion).
The following are the reasons for order ren
dered in English by
GRANT D.J.: These proceedings were com
menced by originating notice of motion for an
order that the entry in the Register of Industrial
Designs relating to Registration No. 45465 stand
ing in the name of the respondent, Goldcrest Fur
niture Ltd., be varied or expunged under the provi
sions of section 22 of the Industrial Design Act,
R.S.C. 1970, c. I-8. Such section and the following
section 23 (1) read as follows:
22. (1) The Federal Court of Canada may, on the informa
tion of the Attorney General, or at the suit of any person
aggrieved by any omission, without sufficient cause, to make
any entry in the register of industrial designs, or by any entry
made without sufficient cause in any such register, make such
order for making, expunging or varying any entry in any such
register as the Court thinks fit; or the Court may refuse the
application.
23. (1) The registered proprietor of any registered industrial
design may apply to the Federal Court of Canada for leave to
add to or alter any such industrial design in any particular not
being an essential particular, and the Court may refuse or grant
leave on such terms as it may think fit.
The present motion is an application to quash or
dismiss the application brought by B & E Furni
ture Manufacturing Co. Ltd. on the ground that
the same is not the proper subject matter for an
originating notice of motion but that the same
should be commenced by filing a statement of
claim.
Rule 400 reads: "Unless otherwise provided
every action shall be commenced by filing an
originating document, which may be called a state
ment of claim or a declaration (Form 11)".
Rule 702(1) reads: "Proceedings under section
22 of the Industrial Design Act shall be instituted
in accordance with subsection (1) of that section".
Rule 702(2) reads: "Proceedings under section
23 of the Industrial Design Act shall be instituted
by originating notice of motion or petition".
It is to be noted that section 22(1) refers to a
proceeding on the information of the Attorney
General or at the suit of any person aggrieved by
either the failure to make an entry in such register
without sufficient cause or by an entry made with
out sufficient cause. Such a proceeding will usually
involve a dispute between claimants as to the
design and to clarify the issues would require
pleadings and examinations for discovery and a
trial by viva voce evidence. Section 23 has refer
ence to an application by the registered proprietor
of the design to add to or alter his industrial design
when there is usually no conflict with another
party in respect thereof. That would appear to be
the reason for the difference in procedure provided
by such Rules.
In "B" v. The Commission of Inquiry pertaining
to the Department of Manpower and Immigration
[1975] F.C. 602 the relief sought was a declara
tion that the Commission did not have jurisdiction.
Addy J. dismissed the motion. One of the grounds
for so doing was that the proceedings should have
been initiated by statement of claim.
The fact that Rule 702(2) particularly states
that proceedings commenced under section 23
shall be commenced by originating notice of
motion or petition is some indication that such
procedure is not available where the subject matter
is within section 22.
An order should therefore go quashing the
application brought by B & E Furniture Manufac
turing Co. Ltd. The respondent Goldcrest Furni
ture Ltd. should have its costs of this motion from
such applicant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.