Ontario Association of Architects (Appellant)
Association of Architectural Technologists of Ontario (Respondent)
Indexed as: Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario (C.A.)
Court of Appeal, Stone, Evans and Sharlow JJ.A.-- Toronto, April 23; Ottawa, May 28, 2002.
* Trade-marks – Official Marks – Appeal from Trial Division’s dismissal of application to reverse Registrar of Trade-marks’ decision to give public notice of adoption, use of official mark by Association of Architectural Technologists of Ontario (AATO) – **Only public authority may register official mark under Trade-marks Act, s. 9(1)(n)(iii) – AATO not-for-profit corporation, incorporated by letters patent, continued by private Act of Ontario Legislature – Applications Judge holding AATO public authority as controlled by Legislature which could amend enabling legislation – Appeal allowed – Application of two-part test of degree of governmental control, public benefit to determine whether public authority – Duty to do some thing of benefit to public (third part of English test) may be relevant as element of public benefit – Government control of otherwise private organization requiring some ongoing supervision of activities – Legislature’s exclusive power to change AATO’s statutory objects, powers, duties insufficient to satisfy government control test because not allowing government to exercise ongoing influence – AATO’s activities benefit public – Setting, enforcing standards of professional competence regulating part of practice of profession, providing public with some assurance as to competence, honesty of members – That activities may also benefit members not fatal to characterization of public benefit.
* Trade-marks – Practice – Registrar of Trade-marks giving public notice of adoption, use by Association of Architectural Technologists of Ontario (AATO) of official marks – Ontario Association of Architects applied to Trial Division for order reversing Registrar’s decision pursuant to Federal Court Rules, 1998, governing both applications for judicial review, appeals under Trade-marks Act, s. 56, without specifying which remedial route pursuing – Should be treated as application for judicial review, not as appeal – Nothing in scheme of Trade-marks Act, s. 9(1) justifying departure from normal principle person who was neither party, nor intervener in proceedings having no standing to exercise statutory right of appeal.