T-4977-79
Nationwide Relocation Service, Inc. (Applicant)
v.
Nationwide Group Realty Ltd. (Respondent)
Trial Division, Walsh J.—Ottawa, June 26 and 27,
1980.
Practice — Motion for default judgment — Motion was
served on respondent's solicitors who did not appear to contest
application — Respondent did not appear — Whether or not
default judgment may be rendered ex parte pursuant to Rule
437 — Motion allowed, provided that no action to strike out
trade mark is taken until 30 days after service of order on
respondent.
Peterson v. The Crown Cork and Seal Co. (1895-97) 5
Ex.C.R. 400, followed.
MOTION.
COUNSEL:
Robert D. Gould for applicant.
No one appearing for respondent.
SOLICITORS:
Smart & Biggar, Ottawa, for applicant.
McCarthy & McCarthy, Toronto, for
respondent.
The following are the reasons for order ren
dered in English by
WALSH J.: The proceedings herein were com
menced by an originating notice of motion dated
October 19, 1979, and seek the striking out of two
trade mark registrations of respondent on the
grounds set out therein.
Respondent has not appeared to contest but
applicant served two affidavits on the solicitors
appearing for respondent in this application for the
said trade marks, namely an affidavit of Jack Hull
sworn on December 5, 1979 and an affidavit of
William P. Niemann sworn on October 31, 1979,
on both of which the said solicitors admitted ser
vice. Two other affidavits, namely those of James
Robert Gairdner sworn on January 17, 1980, and
Frank A. Hodges sworn on November 27, 1979,
were not admitted for service by the said solicitors.
The motion now before the Court is for an order
pursuant to Rule 704 permitting applicant to file
its said affidavit evidence as well as certified copies
of trade mark registrations 204,114 and 202,656
and the certified copy of the file history relating to
Canadian trade mark application No. 384,241 and
secondly for judgment by default striking out
respondent's registrations 202,656 and 204,114.
On the day of the hearing a letter was produced
from respondent's said solicitors stating that they
no longer have any instructions to act in the
matter.
While the affidavits sought to be produced were
not produced within the delays provided by Rule
704, paragraph (8) gives the Court discretion to
permit their production. An order from the Court
is therefore necessary and will be given.
With respect to the default judgment sought
however the situation is somewhat different.
Default judgment on proceedings of this sort
would have to be rendered pursuant to Rule 437,
While applicant contends that such a judgment
may be rendered ex parte I do not consider that
that is the case here. In fact applicant did serve
notice of motion on respondent's said solicitors
McCarthy & McCarthy. While it is correct to say
that they were originally served with the originat
ing notice of motion merely because they repre
sented respondent in its application for the said
trade marks, they did accept service of two affida
vits on behalf of respondent and entered into corre
spondence on its behalf with applicant's attorneys;
and there is in the record produced with an affida
vit of Franca Santagati a letter from them indicat
ing that due to a potential conflict of interest they
have advised respondent to seek other counsel.
Apparently no action was taken on this and they
must therefore be considered as attorneys of
record pursuant to Rule 300(3) until steps are
taken by them pursuant to Rule 300(5) to with
draw formally from the record.
Since it is evident that neither respondent nor
the said attorneys have taken any steps indicating
an intention to contest, however, it would be
unreasonable to oblige applicant to wait further
for judgment. There is some authority (see Peter-
son v. The Crown Cork and Seal Company (1895-
97) 5 Ex.C.R. 400) for rendering a default judg
ment to be served on respondent but not acted on
by the Registrar until 30 days after service so as to
give respondent if so desired an opportunity to seek
to set aside or vary the said judgment pursuant to
Rule 439(3). If no such action has been taken
within 30 days after such service both on solicitors
for respondent, McCarthy & McCarthy and
respondent itself, then the judgment shall take
effect and the relief sought will be granted without
any further action being taken by applicant or the
Court.
ORDER
1. The applicant may file its affidavit evidence and
other documents referred to in the notice of motion
herein.
2. Judgment is rendered in favour of applicant by
default striking out respondent's registration No.
202,656 for the trade mark "Nationwide" and
204,114 for the trade mark "Nationwide and
Design", with costs, on the following conditions:
This order shall be served on respondent and on
Messrs. McCarthy & McCarthy, attorneys of
record for respondent but no action shall be taken
thereon to strike out the said trade marks until 30
days after such service.
In the event that within the said delay no steps
have been taken by or on behalf of respondent
pursuant to Rule 439(3) to vary or set aside this
judgment it will automatically take effect without
further action being necessary by 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.