A-534-96
CORAM: STRAYER J.A.
DÉCARY J.A.
McDONALD J.A.
B E T W E E N:
AUTO MART MAGAZINE LIMITED
Appellant
(Applicant)
" and "
ALEXANDER K. ARTHUR
Respondent
(Opponent)
HEARD at Ottawa, Ontario, on Wednesday, September 10, 1997
JUDGMENT delivered from the Bench on Wednesday, September 10, 1997
REASONS OF THE COURT BY: STRAYER J.A.
A-534-96
CORAM: STRAYER J.A.
DÉCARY J.A.
McDONALD J.A.
B E T W E E N:
AUTO MART MAGAZINE LIMITED
Appellant
(Applicant)
" and "
ALEXANDER K. ARTHUR
Respondent
(Opponent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on Wednesday, September 10, 1997)
STRAYER J.A.
Notwithstanding the thorough argument of counsel for the appellant we are all of the view that this appeal must be dismissed.
This is an appeal from an interlocutory decision of the Trial Division refusing an extension of time for the appellant to serve a notice of appeal under subsection 56(3) of the Trade Marks Act on the respondent. The respondent had successfully opposed the registration of the appellant's trade mark before the Registrar of Trade Marks. The appellant sought to appeal that decision of the Registrar to the Trial Division but failed to serve the respondent in time. On an application to the Trial Division for an extension of time for service, the motions judge refused the extension noting in her order that the appellant had "failed to establish that the appeal discloses a fairly arguable case".
This was a discretionary decision of the motions judge and there are only limited grounds upon which this Court should intervene in such decisions, none of which exist here. It was for the motions judge to balance the various discretionary factors relevant to an extension of time. On the basis of the material she had before her it was certainly open to her to find that the appellant had not demonstrated that it had a fairly arguable case and to treat that as determinative. Whether this Court would have exercised the discretion in the same way is not relevant.
The appeal should therefore be dismissed but without costs, the respondent not having participated.
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS. OF RECORD
COURT FILE NO.: A-534-96
APPEAL FROM AN ORDER OF THE TRIAL DIVISION, DATED JUNE 28, 1996, TRIAL DIVISION FILE NO. T-253-96
STYLE OF CAUSE: Auto Mart Magazine Limited v. Alexander K. Arthur
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 10, 1997
REASONS FOR JUDGMENT OF THE COURT (Strayer, Décary & McDonald H.A.)
RENDERED FROM THE BENCH BY: Strayer J.A.
APPEARANCES:
Mr. W. Charles Kent
Mr. Mitchell B. Charness for the Appellant
No one appearing for the respondent
SOLICITORS OF RECORD:
Kent & Edgar
Ottawa, Ontario for the Appellant
Mr. Alexander K. Arthur
Rexdale, Ontario for the Respondent (On his own behalf)