PRACTICE |
Affidavits |
Robert Mondavi Winery v. Spagnol's Wine & Beer Making Supplies Ltd.
T-1294-99
2001 FCT 1005, Nadon J.
10/9/01
13 pp.
Motion by respondent appealing prothonotary's decision granting leave to applicant to serve, file supplementary affidavit of Michael Beyer--Applicant seeking to expunge respondent's trade-mark "Woodbridge Estate and Design"--Prothonotary's decision dealt with motion by applicant under Federal Court Rules, 1998, r. 84(2) for order granting applicant leave to serve, file additional affidavits--R. 84(2) providing party who has cross-examined deponent of affidavit filed in motion or application may not subsequently file affidavit in that motion or application, except with consent of all other parties or with leave of court--Motion dismissed--Appeal based on erroneous proposition that if information available before cross-examination, Court barred from exercising its discretion to allow party to file affidavit containing that information after cross-examination--Rule requiring judge, prothonotary to consider, balance following factors in deciding whether leave ought to be granted in circumstances: (1) whether facts set out in further affidavit relevant to litigation; (2) whether information proposed to be adduced in further affidavit available before cross-examination; (3) whether filing of supplementary affidavit will cause serious prejudice to other parties--Motion dismissed--Respondent not establishing prothonotary either failed to exercise discretion judicially or made error of law in concluding leave should be granted--(1) Prothonotary noted respondent not disputing proposed evidence relevant to central issue of expungement proceedings--(2) Found information in question available to applicant prior to cross-examination--(3) Concluded any prejudice suffered by respondent could be remedied by appropriate order with respect to further cross-examination and opportunity to adduce further evidence, appropriate order as to costs--Federal Court Rules, 1998, SOR/98-106, r. 84(2).