T-4899-80
Canadian Olympic Association (Appellant)
v.
Registrar of Trade Marks (Respondent)
Trial Division, Mahoney J.—Toronto, January 12;
Ottawa, January 19, 1981.
Practice — Discovery — Application to examine for discov
ery Acting Registrar of Trade Marks in appeal from his
decision — Whether Court has discretion, under Rule 705, to
permit such examination — Application dismissed — Regis
trar, although necessarily a party, not to be regarded as an
opposing party — No cross-examination on validity of his
decision nor on his reasons for making it, allowed — Trade
Marks Act, R.S.C. 1970, c. T-10, ss. 9(1)(n)(iii), 56 — Federal
Court Rule 705.
APPLICATION.
COUNSEL:
K. McKay for appellant.
B. Evernden for respondent.
SOLICITORS:
D. F. Sim, Q.C., Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The appellant seeks to examine
an official of the Trade Marks Office for discov
ery. This is an appeal under section 56 of the
Trade Marks Act' from the decision made Sep-
tember 22, 1980, rejecting the appellant's request
that public notice be given of the appellant's adop
tion of a number of marks pursuant to subpara-
graph 9(1)(n)(iii) of the Act.
9. (1) No person shall adopt in connection with a business,
as a trade mark or otherwise, any mark consisting of, or so
nearly resembling as to be likely to be mistaken for
(n) any badge, crest, emblem or mark
(iii) adopted and used by any public authority in Canada
as an official mark for wares or services,
' R.S.C. 1970, c. T-10.
in respect of which the Registrar has, at the request of ...
the ... public authority ..., given public notice of its adop
tion and use; ...
The official sought to be examined is the then
Acting Registrar of Trade Marks who decided that
the appellant was not a "public authority" within
the meaning of the subparagraph 9(l)(n)(iii).
That decision is admitted to be contrary to the
position taken by the respondent on an earlier
occasion.
In his reply to the notice of appeal, the respond
ent admits all of the facts alleged in the notice of
appeal except paragraph 7 which the reply charac
terizes as a "conclusion of law".
7. That the Appellant was at all material times and is now a
public authority within the context of the Trade Marks Act and
the manner in which Section 9(I)(n)(iii) has been applied.
While the Registrar of Trade Marks is neces
sarily a party to this proceeding, he is not fairly to
be regarded as an opposing party. He has made a
decision which is subject to an appeal but he is not
to be cross-examined on the validity of that deci
sion, or on his reasons for making it. 2 I have been
unable to conceive of the circumstances in which it
would be proper exercise of the Court's discretion,
under Rule 705, to permit examination for discov
ery of the Registrar in an appeal from his decision.
Certainly such circumstances have not been shown
to exist here.
ORDER
The application is dismissed.
2 Vid. Squibb United Kingdom Staff Association v. Certifi
cation Officer [1979] 2 All E.R. 452.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.