T-4112-78
Hardee's Food Systems, Inc. (Applicant)
v.
Foodcorp Limited (Respondent)
Trial Division, Mahoney J.—Toronto, March 31;
Ottawa, April 3, 1980.
Practice — Application to strike pleadings — In application
initiated by originating notice of motion for the expunging of
six registered trade marks, respondent seeks to strike out
certain paragraphs of supporting affidavit of partner in the
law firm representing the applicant and certain related por
tions of originating notice of motion, and alternatively seeks to
cross-examine that lawyer and the deponents referred to in his
affidavit including respondent's own officers — Certain para
graphs of affidavit depose nothing and others do not meet the
requirements of Rule 332(1) and consequently are struck out
— Respondent is not permitted to cross-examine either the
lawyer making the affidavit or its own officers — Proceedings
stayed while applicant given leave to file affidavits supporting
its originating notice of motion which sought discovery of
respondent under Rules 447, 448 and 465 and which had been
adjourned sine die on consent pending the result of respond
ent's motion — Federal Court Rules 332(1), 447, 448, 465.
APPLICATION.
COUNSEL:
J. Guy Potvin for applicant.
Barry A. Leon for respondent.
SOLICITORS:
Scott & Aylen, Ottawa, for applicant.
Tory, Tory, DesLauriers & Binnington,
Toronto, for respondent.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The application to expunge six
registered trade marks was initiated by originating
notice of motion. In support of the application, the
applicant has filed the affidavit of John G. Aylen,
a partner in the law firm representing it herein, in
which he deposes, inter alia:
7. That the Applicant herein shall refer in the within expunge -
ment proceedings to the affidavits filed by the Respondent,
Foodcorp Limited in the Opposition proceedings of the
Respondent, Foodcorp Limited in Canadian Trade Mark
application serial No. 374,321—HARDEE's as well as to the
cross-examinations of the affiants of said affidavits and the
answers given to undertakings during said cross-examinations.
8. That further, the Applicant shall rely on the affidavits of
Linda Edwards, Tor Eckert and John Vergados filed with the
Registrar of Trade Marks and served on the Respondent's
agent for service in the Opposition proceedings commenced by
Foodcorp Limited in Canadian Trade Mark application serial
No. 374, 3 21—HAR DEE'S.
9. Further, the Applicant shall refer in the within proceedings
to the affidavit of Richard C.W. Mauran, filed with the
Respondent, Foodcorp Limited in the Opposition proceedings
to the application by Foodcorp Limited to extend the statement
of wares in Canadian Trade Mark registration No. 148,704—
HARVEY'S (Registrar's file No. 292,412) and Canadian Trade
Mark registration No. 147,423—HARVEY'S (Registrar's file
No. 290,387). The applicant herein shall also refer to the
cross-examination transcript of Richard C.W. Mauran on said
affidavit and the answers to the undertakings given by him.
In paragraphs 10 and 11 he deposes to certain
admissions made by officers of the respondent in
the course of those opposition proceedings. In
paragraph 12 he refers to the result of a search of
the Trade Marks Register which he does not pur
port to have conducted himself.
With Aylen's affidavit, although not as an
exhibit to it, the applicant filed a document en
titled "Supplementary Affidavit to be referred to
on behalf of the Applicant". This includes copies
of the affidavits referred to in paragraphs 7, 8 and
9 of Aylen's affidavit, copies of the transcripts of
cross-examinations on those referred to in para
graphs 7 and 9 and copies of letters fulfilling
undertakings given in the course of those cross-
examinations. The affidavits referred to in para
graph 8 of Aylen's affidavit were filed on behalf of
the present applicant in the opposition proceed
ings. A further affidavit in those proceedings,
sworn by a William Gunn, ought to have been
referred to in paragraph 8.
The respondent now seeks to strike out para
graphs 7 to 12, inclusive, of Aylen's affidavit along
with certain related portions of the originating
notice of motion. In the alternative, it seeks to
cross-examine Aylen and the deponents of the
affidavits he refers to, in the opposition proceed
ings, including the respondent's own officers. In
opposing the motion, the applicant acknowledges
that the respondent ought to be allowed to cross-
examine at least some of those deponents, not
including Aylen and its own officers, even though
it did not elect to do so in the opposition proceed
ings. The applicant would also be content to have
paragraphs 7 to 11 struck out if the respondent
would undertake to file appropriate affidavits in
this proceeding and it is given an opportunity to
cross-examine their deponents. As a result of
agreed extensions, the respondent still has time to
file its material in reply.
The applicant filed its own notice of motion
seeking discovery of the respondent under Rules
447, 448 and 465. This latter motion was
adjourned sine die on consent to be brought on, if
necessary, when the results of the respondent's
motion are known.
There is precedent for the record in proceedings
in the Trade Marks Office being introduced in
evidence on an application of this nature. In Home
Juice Company v. Orange Maison Limited 1 , Jack-
ett P., (as he then was) alludes in passing to having
ordered it done. What the applicant has done here
is attempt to get selected portions of those records
on the record here without an order of the Court.
Paragraphs 7, 8 and 9 depose to nothing; they
give notice of the applicant's intention to do some
thing at a future stage in these proceedings. Para
graphs 10, 11 and 12 clearly do not meet the
requirement of Rule 332(1) that, except on an
interlocutory motion, an affidavit must be confined
to such facts as the deponent is able, of his own
knowledge, to prove.
The notice of motion does invite the Court to
make such order as to it seems just. While the
paragraphs in question ought to be struck out, I
am satisfied that the evidence tendered by each
party to the opposition proceedings is admissible
against it in the application. The opposition pro
ceedings all involved the same parties and most, if
not all, of the same issues as appear here. The
evidence was given under oath and, in so far as a
party did not tender it on its own behalf it had,
even if it did not take, a full opportunity to cross
' [1968] 1 Ex.C.R. 163 at 164.
examine on it. From a practical point of view, the
respondent's deponents are not available to swear
affidavits at the applicant's option and vice versa.
If either party wants any of the evidence submitted
on its own behalf in the opposition proceedings to
be considered in this application, and is unwilling
to count on the opposing party putting it in, it had
better do so itself by fresh affidavits. The opposing
party can then decide if it wishes to seek an
opportunity to cross-examine on any of them. I do
not propose to permit the respondent to cross-
examine Aylen or its own officers. Neither do I
propose to strike out any portion of the originating
notice of motion. Costs will be in the cause.
ORDER
IT IS ORDERED THAT:
1. Paragraphs 7 to 12 inclusive of the affidavit of
John G. Aylen, filed herein September 18, 1978,
be struck out.
2. The applicant has leave, on or before April 25,
1980, to file further affidavits in support of its
originating notice of motion herein and that pro
ceedings be, in the meanwhile, stayed.
3. Pursuant to Rule 704(8), properly certified
records of the opposition proceedings in the Trade
Marks Office in respect of application No. 374,-
321 and registration Nos. 147,423 and 148,704
may be filed herein.
4. Pursuant to Rule 474, the affidavits filed by
either of the parties therein, the transcripts of the
cross-examinations of their deponents and the
answers to undertakings given in the course of
such cross-examinations shall be admissible in evi
dence against that party.
5. Costs of this application shall be in the cause.
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.