PRACTICE
Affidavits
Appeal from Motions Judge’s dimissal of motion for order directing affiants to appear for cross-examination on affidavits—Issue whether, in appeal to Trial Division under Trade-marks Act, s. 56 of Registrar’s decision pursuant to s. 45 (expungement for non-use), affidavits filed on appeal by or on behalf of registrered owner subject to cross-examination—Issue settled in Labatt’s Ltd. v. Benson & Hedges (Canada) Ltd. (1983), 75 C.P.R. (2d) 287 (F.C.A.), holding Trial Division had jurisdiction to require deponent of affidavit, filed in court, to submit to cross-examination—Issue stated in terms of jurisdiction because under Federal Court Rules, R. 704(6), then in force, leave of Court required in order to cross-examine deponent—Under Federal Court Rules, 1998, r. 83, leave of Court no longer required, but principle remains same—Rules of Court could not change principle founded on interpretation of statute—Reasons for judgment in Sim & McBurney v. Microtel Ltd. (2000), 7 C.P.R. (4th) 260 (F.C.T.D.), wherein same issue examined, substantially agreed with—Federal Court Rules, 1998, SOR/98-106, r. 83—Federal Court Rules, C.R.C., c. 663, R. 704(6) (as am. by SOR/92-726, s. 9)—Trade-marks Act, R.S.C., 1985, c. T-13, ss. 45 (as am. by S.C. 1994, c. 47, s. 200), 56.
House of Kwong Sang Hong International Ltd. v. Borden Ladner Gervais (A-421-01, 2001 FCA 346, Décary J.A., judgment date 13/11/01, 3 pp.)