McDowell v. Automatic Princess Holdings, LLC, 2015 FC 980 (McVeigh, J.)
August 18, 2015
Kenneth McKay of Sim Lowman Ashton & McKay LLP for the Applicant Heather Ruth McDowell
Sarah Engle-Hardy of Bereskin & Parr for the Respondent Automatic Princess Holdings, LLC
This decision arose out of an application for judicial review under Section 18.1 of the Federal Courts Act. The Applicant sought leave from the Trademarks Opposition Board (the “TMOB”) to file an Amended Statement of Opposition to the Respondent’s trade-mark application for the trademark HONEY B. FLY. The amendment requested would have added a further ground for opposition, and was made at a late stage in the opposition process.
The TMOB had refused leave on the basis that the application for leave did not satisfy the factors set out in Part VII of the Practise in Trade-mark Opposition Proceedings. A decisive factor in the TMOB’s decision was that allowing the amendment would have the effect of “splitting” the Applicant’s case, which was not in the interests of justice.
The Applicant sought judicial review of the TMOB’s decision at the Federal Court. The central issue considered by the Court was whether judicial review can be made of interlocutory decisions. Ultimately, the Court determined that interlocutory decisions could only be judicially reviewed in very narrow circumstances; only where there are “special and almost exceptional circumstances”. Only where all adequate remedies had been exhausted would a Court review the interlocutory decision.
On review of the facts and applicable case law, the Court determined that the Applicant had not exhausted all adequate remedies, and the exceptional circumstances warranting review of the TMOB’s decision were absent. The Applicant had available to her: 1) the remedies of expungement under Section 57 of the Trade-marks Act, 2) a separate Section 12(1)(d) proceeding, or 3) the possibility of being successful on the basis of the outstanding opposition application.
The application was dismissed with costs of $3,500.00 awarded in favour of the Respondent.
By: Bria M. Brown, Carscallen LLP