Spectrum Brands’ Appeal of Refusal to Grant Extension of Time Dismissed

Background

The Registrar’s split decision to allow Schneider Electric Industries SAS (“Schneider”) to register the trademark “WISER” was released on September 11, 2019. According to s. 56 of the Trademarks Act, each party has two months from the date on which notice is given to the parties from the Registrar to contest the decision, giving the parties until November 25, 2019. Schneider appealed by November 25, 2019. Spectrum Brands failed to do so, and moved for an extension of time on February 21, 2020.

The motion judge found that Spectrum had failed to establish two of the four criteria that must be considered on a motion for an extension of time, as set out in Canada (Attorney General) v Hennelly, [1999] F.C.J. No. 846 (F.C.A.) (“Hennelly”), namely, Spectrum failed to: show a continuing intention to pursue its appeal; and provide a reasonable explanation for the delay in bringing the proposed appeal.

The FCA’s Decision

Spectrum failed to show a continuing intention to pursue its appeal

Spectrum argued that the motion judge erred in failing to appreciate that the proposed appeal was a cross-appeal of the Registrar’s decision and, as a result, the starting point for the inquiry into whether it had a continuing intention to bring the proposed appeal was the filing of Schneider’s Notice of Application on November 25, 2019, not the date of the Registrar’s decision. It also claimed that the motion judge failed to account for the overriding consideration that justice be done between the parties, even in cases where one of the four Hennelly criteria is not satisfied. The FCA rejected both arguments.

The FCA noted that even if it accepted Spectrum’s argument that the delay for brining the proposed appeal should be calculated as of November 25, 2019, this was hardly evidence of Spectrum’s alleged continuing intention to file an appeal of the Registrar’s decision.

Spectrum failed to provide a reasonable explanation for its delay

The FCA further concluded that Spectrum had failed to provide a reasonable explanation for its delay in bringing the motion for an extension of time.

Spectrum claimed its delay was because it learned of Schneider’s intention to appeal right before the Christmas holidays, but the FCA was unconvinced. The FCA agreed with the motion judge that “there is nothing inherently unpredictable about the period surrounding statutory holidays, parties to a litigation being expected to be aware of them and to plan and work within time frames that include such holidays.” Furthermore, there was no explanation for the six week period between the end of the holiday season and the date on which Spectrum sought an extension of time.

The FCA affirmed the motion judge’s decision, and dismissed Spectrum’s appeal.

Author: Shannon Skillings