Molson Cos. v. Labatt Brewing Co.
T-3728-78
Joyal J.
14/8/96
8 pp.
Action for infringement of trade mark "Club" in association with beer products commenced in 1978-Federal Court Rules, R. 440 permitting defendant to apply on two weeks' notice to dismiss action for want of prosecution if not receiving notice of trial within three months after close of pleadings-Two weeks not mandatory if exceptional circumstances-In application under R. 440(1), delay must be (1) inordinate; (2) inexcusable; (3) cause serious prejudice to defendant: Patex Snowmobiles Ltd. v. Bombardier Ltd. et al. (1991), 48 F.T.R. 221 (F.C.T.D.)-Delays inordinate, but mutual-R. v. Kahn, [1990] 2 S.C.R. 531 and R. v. Smith, [1992] 2 S.C.R. 915 permitting admission of hearsay evidence in affidavit by applying "reliability and necessity" test-No reason why, on grounds of reliability and necessity, affidavit evidence and exhibits produced by defendant in 1978 in opposition to plaintiff's injunction application might not be produced or related by defendant's witness-Delays mutually excusable-No reason to dispense with R. 440(2) requirement of two weeks' written notice to be served on plaintiff stipulating that unless plaintiff takes necessary steps to bring action on for trial, application to dismiss will be made-Federal Court Rules, C.R.C., c. 663, RR. 331A (as enacted by SOR/79-57, s. 6), 440.