Date: 20010105
Docket: T-572-00
Ottawa, Ontario, this 5th day of January 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
LAMMLE'S WESTERN WEAR LTD.
Applicant
- and -
REDNECK JEAN COMPANY INC.
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is an application in the nature of an application for default judgment in respect of a Notice of Application. The applicant relies on Rule 4 of the Federal Court Rules, 1998 to analogize from default proceedings in an action. No response having been made to the Notice of Application, the applicant seeks to have the Court grant the relief sought in the Notice of Application.
[2] As in proceedings in default in an action, proof of service is fundamental to entitlement to the remedy. The Rules speak to the question of service. They provide a manner of service and a form by which such service may be proved.
[3] In this case, a solicitor's certificate is filed in which the solicitor certifies that he caused the defendant to be served at their registered office by "courier sent on Tuesday, June 15, 2000" with the order extending the time for service and the Notice of Application.
[4] Rule 146(1)(b) provides that in respect of a matter not required to be served personally, proof of service may be made by solicitor's certificate.
[5] Rule 127(1) provides that originating documents must be served personally. Rule 63(1)(d) provides that in the case of an application, the originating document is a Notice of Application. The Notice of Application was therefore a document required to be served personally, proof of which may not be made by solicitor's certificate.
[6] However, even if the certificate were in the form of an affidavit, it would still be insufficient. Rule 130 requires personal service upon a corporation to be effected by leaving a copy with a director or person employed by the corporation as legal counsel or, in the alternative, by leaving it with the person apparently in charge at the corporation's offices. Service may also be effected in the manner provided for in proceedings before the Superior Court of the province in which service was effected.
[7] A sworn statement that the originating document was given to a courier does not satisfy any of these requirements. It does not prove that the document was actually delivered to the person to whom it was required to be delivered.
[8] As a result, there is no proof of service of the Notice of Application without which there is no entitlement to the relief sought. The application is dismissed with leave to reapply with proper proof of service.
ORDER
The motion for an order expunging trademark registration No. TMA471,229 and costs is hereby dismissed with leave to reapply upon proper proof of service of the Notice of Application.
"J.D. Denis Pelletier"
Judge