This is an appeal of the Court's decision, refusing to grant Sports Maska Inc. dba Reebok-CCM Hockey (CCM) leave to intervene in proceedings between Bauer Hockey Corp (Bauer) and Easton Sports Canada Inc. (Easton). The FCA dismissed the appeal.
The underlying proceeding relates to Bauer's SKATES EYESTAY Design trademark. Easton requested the Registrar of Trademarks to issue a notice pursuant to s. 45 of the Trade-marks Act to Bauer, to furnish evidence of use of the mark. Bauer brought an action for infringement against Easton. Bauer brought a similar action against CCM. The trademark was expunged and Bauer appealed. Bauer and Easton then settled both the infringement action and the trademark expungement appeal. CCM then sought leave to intervene in the trademark expungement appeal.
The FCA summarized the law applicable to motions to intervene, and held that the criteria to be considered must remain flexible because every intervention application is different. In the end, the Court must decide if, in a given case, the interests of justice require that intervention be granted or refused. Nothing is to be gained by adding factors to respond to every novel situation. Those novel situations are covered by the question relating to the interests of justice.
The FCA concluded by analyzing both the decision below and the factors to be considered in such motions. The FCA held that although the Prothonotary had erred in his considerations, that error was inconsequential and intervention should be denied. The existence of the infringement action outweighs everything else.