Dow Chemical Company (Plaintiff)
v.
Firestone Tire & Rubber Company and Carl W.
Shroeder, Hans E. Lunk and Marshall E. Doyle
(Defendants)
Trial Division, Walsh J.—Toronto, June 14;
Ottawa, June 23, 1971.
Practice—Patent conflict action—Order allowing 30 days
to file defence—Expiration of time in long vacation—Wheth-
er order extending time required—Federal Court Rules
3(1)(b), 701(7).
Defendants in a patent conflict action were by order of
Gibson J. on June 1, 1971, under Federal Court R. 701,
given 30 days (i.e. until July 1, 1971) to file and serve
statements of defence and counterclaim. Under R. 3(1)(b)
the long vacation is normally excluded in computing time.
Rule 701(7) declares that " ... no ... period fixed by these
Rules can be extended in a proceeding under this rule
without an order of the Court".
Held, in view of the doubt to which these rules give rise,
an order should be made extending the time for filing
statements of defence and counterclaim until August 1,
1971.
MOTION.
D. S. Johnston, Q.C., for applicants.
R. T. Hughes, contra.
WALSH J.—On June 1, 1971, by order of
Gibson J. each of the defendants was given 30
days from the date of the order to file and serve
upon plaintiff and upon the other defendants an
individual statement of defence and counter
claim against the plaintiff and the other defend
ants, in which they might raise such defences
and issues as are stipulated in s. 45(8) of the
Patent Act as such defendants might deem fit.
On the application argued before me at
Toronto on June 14, 1971, defendants asked for
a declaration that the time of the long vacation
should not be reckoned in the computation of
the time set in the order of Gibson J. within
which to file a statement of defence and coun
terclaim, or in the alternative for an order under
R. 701(7) extending the time within which to
file a statement of defence, counterclaim and
supporting affidavit until September 1, 1971.
The 30 days provided for in the judgment of
Gibson J. would, by virtue of s. 25(1) of the
Interpretation Act 1967-68 (Can.), c. 7, incor
porated in the Rules of this Court as R. 3(1),
expire on July 1 as the day of the order would
be excluded in reckoning the 30 days, and
hence would fall during the long vacation.
Counsel for the parties conceded that this was
not discussed during the hearing before Gibson
J. nor was his mind directed to the possible
consequences of this.
Defendants contend that by virtue of R. 3(1)
(b) which reads as follows:
3. (1) Unless the contrary otherwise appears, the compu
tation of time under these Rules, or under any order or
judgment of the Court, is governed by section 25 of the
Interpretation Act, chapter 7 of 1967 . . . and by the
following provisions:
(b) subject to Rule 402(3), the time of the Long and
Christmas Vacations shall not be reckoned in the compu
tation of the time for filing, amending or serving any
pleading or other document, unless otherwise directed by
the Court,
they are not obliged to plead until September 1,
1971, despite the order of Gibson J. of June 1,
1971, giving them 30 days to do so. His order
was made by virtue of R. 701 which is in a
special section of the Rules dealing with "Con-
flicting Applications for a Patent" and R. 701(7)
reads as follows:
701. (7) Notwithstanding Rule 3(1)(d), the period of 30
days fixed by paragraph (3) cannot be extended except by
an order of the Court. Similarly, no other period fixed by
these Rules can be extended in a proceeding under this rule
without an order of the Court.
As there is some uncertainty, defendants are
asking for an extension of the delay by an order
of the Court in the event that R. 3(1)(b) does
not apply so as to automatically extend this
delay.
Rule 3(1)(d), to which R. 701(7) refers, per
mits the parties by consent to agree to extend
the delays fixed by the Rules or an order, so R.
701(7) prevents the extension of the delay by
consent. It does not specifically exclude, how
ever, the application of R. 3(1)(b), from which it
might be inferred that this Rule still applies
even in matters dealing with conflicting applica
tions for a patent. However, the second sen
tence of R. 701(7) provides that "no other
period fixed by these Rules can be extended in
a proceeding under this rule without an order of
the Court". Counsel for defendants argued that
while the "period" i.e. the 30 day period fixed
by R. 701(3) and applied in the judgment of
Gibson J. could not be extended without an
order of the Court, the manner of computation
of it still applies, so that the period is in effect
extended by the application of R. 3(1)(6).
As there is some doubt in this matter, and
especially as the 30 day period was not one
automatically provided for in the Rules but
results from an order of Gibson J., I believe that
it is preferable that, if it is to be extended, a
further order should be made. A two-month
extension appears excessive, however, although
counsel for defendants claims the pleadings will
be complex.
I therefore extend the delay of 30 days fixed
in the order of Gibson J. for a further period to
expire on August 1, 1971, costs to be in the
event of the cause.
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.