Garbo Group Inc. v. Harriet Brown & Co.
T-2432-97
MacKay J.
8/7/98
8 pp.
Appeal from order permitting cross-examination on affidavits-Application arising in appeal from decision of Trade-marks Opposition Board proceedings-Harriet Brown & Co. filing reply, supporting affidavits in response to appeal-In February 1998 appellant serving three further affidavits, requesting consent to filing, advising of proposed motion to permit crossexamination on affidavits-Until April 25, 1998, Federal Court Rules then applicable (R. 704(6)) permitting crossexamination on affidavits in trade-mark appeal proceeding only with leave of Court-In practice leave restricted to cases of ambiguity in affidavit, leave limited to matter considered ambiguous-Cross-examination could not be undertaken before all affidavits filed-No time limit for applying for leave to cross-examine-Despite repeated requests by appellant, Harriet Brown only refusing consent after Federal Court Rules, 1998 in force-Under 1998 Rules, no limitation on right to crossexamine on affidavits filed in appeal of Trade Mark Opposition Board decision proceedings-Rr. 83, 308 permitting crossexamination without necessity for leave, to be completed within 20 days of filing of affidavit-Associate Senior Prothonotary's order permitting cross-examination on both affidavits because ambiguity in one-Appeal dismissed-1998 Rules applicable to disposition of this application, motion for extension of time before Associate Senior Prothonotary-Under 1998 Rules, extension of time necessary since 20 days specified for cross-examination as of right on affidavit long since passed-Limitation on scope of cross-examination to ambiguous matters no longer applicable-Appropriate test for extension of time set out in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (C.A.)-Clearly appellant intended to cross-examine on affidavits in question, but not free to do so without leave, as required prior to April 25, 1998, until had filed all evidence-Appellant not delaying in applying for extension of time, leave to file supplementary affidavits, once clear Court order required to file desired evidence-Extension of time not prejudicing Harriet Brown & Co.-While reasoning underlying order in error, in so far as based upon finding ambiguity in one or both affidavits in question, applying test in Grewal, result of order not in error in proper exercise of discretion in granting extension of time for cross-examination-Federal Court Rules, C.R.C., c. 663, R. 704(6) (as am. by SOR/92-726, s. 9)-Federal Court Rules, 1998, SOR/98106, rr. 8, 83, 308, 501.