T-1995-76
VMC Corporation (Applicant)
v.
Zodiac Ltée-Zodiac Ltd. (Respondent)
Trial Division, Mahoney J.—Ottawa, January 17,
1977.
Practice — Joint motion for order dismissing application to
strike out entries in register of trade marks — Proceeding
deemed motion for consent judgment pursuant to Rule 340
Whether respondent's solicitors entered an appearance as
required by Rule 340 — Whether solicitors on record pursuant
to Rule 300(3) — Federal Court Rules 300(3), 340, 401 and
402(3).
APPLICATION without personal appearance pur
suant to Rule 324.
COUNSEL:
Nicholas H. Fyfe for applicant.
Malcolm E. McLeod for respondent.
SOLICITORS:
Smart & Biggar, Ottawa, for applicant.
Ogilvy, Cope, Porteous, Montgomery,
Renault, Clarke & Kirkpatrick, Montreal,
for respondent.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This is a joint motion for an
order dismissing without costs, an application to
strike out certain entries in the register of trade
marks. Such an application is, in my view, an
action and this is a motion for a consent judgment
to which Rule 340 applies'.
The solicitors who have, on behalf of the
respondent, joined in seeking the order, had earlier
written this Court's Registry advising, in part, that
"our firm has been retained to represent the
Respondent" in the action. The first question is
whether that letter is the entry of an appearance.
The Rules of this Court do not appear to provide
for the entry of a general appearance such as the
letter purports to be nor even for a particular
appearance for the purpose of consenting to judg
ment. A conditional appearance may be filed
under Rule 401 and a so-called "vacation appear
ance" may be filed under Rule 402(3) but the
letter, if it is an appearance, does not disclose that
it was filed under the authority of either of those
Rules. I see no other Rule that authorizes the
filing of an appearance and yet I find it most
difficult to contemplate that by omission, rather
than express provision of the Rules, it is intended
by Rule 340(3) to preclude a consent judgment,
prior to the filing of a defence, except in peculiar
circumstances where either a conditional or vaca
tion appearance has been duly filed. I have there
fore come to the conclusion that, by joining in the
application for judgment, the respondent has
entered an appearance.
' Rule 340. (1) In any action where there is an attorney or
solicitor on the record for the defendant, no judgment shall be
given by consent unless the consent of the defendant is given by
the attorney or solicitor on the record.
(2) Where there is no attorney or solicitor on the record for
the defendant, no judgment shall be given by consent unless the
defendant attends in court and gives his consent in person, or
unless his written consent is attested to by an attorney or
solicitor acting on his behalf, except in cases where the defend
ant is a barrister, advocate, attorney or solicitor.
(3) No order for judgment by consent shall be made unless
the defendant has entered an appearance or filed a defence.
In my view, taking a "step in a proceeding", as
that expression is used in the Rules, involves doing,
on the record of the proceeding in the Court,
something required by the Rules to be done to
advance the proceeding to a conclusion. A motion
for judgment is certainly a "step in a proceeding"
by that criterion and the step having been taken by
"a document signed by an attorney or solicitor",
there is now "an attorney or solicitor on the
record" by virtue of Rule 300(3).
Judgment, in the terms sought, will issue.
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.