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T-2943-79
B & E Furniture Manufacturing Co. Ltd. (Applicant)
v.
Goldcrest Furniture Ltd. (Respondent)
Trial Division, Grant D.J.—Toronto, September 24 and October 3, 1979.
Practice — Industrial design — In proceedings commenced by originating notice of motion for order to expunge or vary under s. 22 of the Industrial Design Act, application made by Goldcrest Furniture Ltd. to quash B & E Furniture Manufac turing Co. Ltd.'s application on the ground that it is not the proper subject matter for an originating notice of motion — Procedure commenced by originating notice of motion not available when subject matter is within s. 22 of the Industrial Design Act — Application allowed — Industrial Design Act, R.S.C. 1970, c. 1-8, ss. 22, 23 — Federal Court Rules 400, 702(1),(2).
APPLICATION. COUNSEL:
Arlen Charles Reinstein for applicant (respondent on motion).
Harry Perlis for respondent (applicant on motion).
SOLICITORS:
Arlen Charles Reinstein, Toronto, for appli cant (respondent on motion).
Atlin, Goldenberg, Cohen & Armel, Toronto, for respondent (applicant on motion).
The following are the reasons for order ren dered in English by
GRANT D.J.: These proceedings were com menced by originating notice of motion for an order that the entry in the Register of Industrial Designs relating to Registration No. 45465 stand ing in the name of the respondent, Goldcrest Fur niture Ltd., be varied or expunged under the provi sions of section 22 of the Industrial Design Act, R.S.C. 1970, c. I-8. Such section and the following section 23 (1) read as follows:
22. (1) The Federal Court of Canada may, on the informa tion of the Attorney General, or at the suit of any person aggrieved by any omission, without sufficient cause, to make any entry in the register of industrial designs, or by any entry made without sufficient cause in any such register, make such order for making, expunging or varying any entry in any such register as the Court thinks fit; or the Court may refuse the application.
23. (1) The registered proprietor of any registered industrial design may apply to the Federal Court of Canada for leave to add to or alter any such industrial design in any particular not being an essential particular, and the Court may refuse or grant leave on such terms as it may think fit.
The present motion is an application to quash or dismiss the application brought by B & E Furni ture Manufacturing Co. Ltd. on the ground that the same is not the proper subject matter for an originating notice of motion but that the same should be commenced by filing a statement of claim.
Rule 400 reads: "Unless otherwise provided every action shall be commenced by filing an originating document, which may be called a state ment of claim or a declaration (Form 11)".
Rule 702(1) reads: "Proceedings under section
22 of the Industrial Design Act shall be instituted in accordance with subsection (1) of that section".
Rule 702(2) reads: "Proceedings under section
23 of the Industrial Design Act shall be instituted by originating notice of motion or petition".
It is to be noted that section 22(1) refers to a proceeding on the information of the Attorney General or at the suit of any person aggrieved by either the failure to make an entry in such register without sufficient cause or by an entry made with out sufficient cause. Such a proceeding will usually involve a dispute between claimants as to the design and to clarify the issues would require pleadings and examinations for discovery and a trial by viva voce evidence. Section 23 has refer ence to an application by the registered proprietor of the design to add to or alter his industrial design when there is usually no conflict with another party in respect thereof. That would appear to be
the reason for the difference in procedure provided by such Rules.
In "B" v. The Commission of Inquiry pertaining to the Department of Manpower and Immigration [1975] F.C. 602 the relief sought was a declara tion that the Commission did not have jurisdiction. Addy J. dismissed the motion. One of the grounds for so doing was that the proceedings should have been initiated by statement of claim.
The fact that Rule 702(2) particularly states that proceedings commenced under section 23 shall be commenced by originating notice of motion or petition is some indication that such procedure is not available where the subject matter is within section 22.
An order should therefore go quashing the application brought by B & E Furniture Manufac turing Co. Ltd. The respondent Goldcrest Furni ture Ltd. should have its costs of this motion from such applicant.
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