Aquatera Utilities Inc v Aquaterra Water Management Inc, 2018 ABQB 962

Court of Queen’s Bench of Alberta Citation: Aquatera Utilities Inc v Aquaterra Water Management Inc, 2018 ABQB 962 Date: 20181123 Docket: 1601 11726 Registry: Calgary Between: Aqua Terra Water Management Inc. Applicant - and - Aquatera Utilities Inc. Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.S.

Brooker _______________________________________________________ Introduction [ 1 ] The applicant, Aqua Terra Water Management Inc. (Water) appeals pursuant to sections 247 and 249 of the Business Corporations Act, RSA 2000, c B-9 (the Act) from a decision of the Registrar of Corporations directing Water to change its corporate name. The Registrar found that the name Water was confusingly similar to that of the respondent, Aquatera Utilities Inc. (Utilities) and that it therefore contravened both the Act and the associated Business Corporations Regulation , Alta Reg 118/2000 (the Regulation).

History [ 2 ] The respondent was incorporated in Alberta in November of 2001 under a different name. In January of 2003, it registered a name change to Utilities with the corporate registry, and has been using the name Utilities in association with its business since that time. Its head office is located in Grande Prairie and it provides services to the Grade Prairie and greater Peace River Country region. Utilities is a full-service utility corporation providing water, sewer, waste handling and recycling services and infrastructure, as well as municipal consulting services.

According to Utilities, a significant part of its service offerings is the collection and treatment of wastewater. Customers – including oilfield businesses – offload their waste at receiving stations located at its wastewater plant for waste treatment.

Generally speaking, Utilities does not offer its services using retail outlets, meaning customers wishing to do business with Utilities must contact the company directly. [ 3 ] Utilities’ application to have both its name and its logo registered as trade-marks was granted in August of 2005. [ 4 ] The applicant was incorporated in 2001 under the name Four Winds Oilfield Services Ltd., and following a minor name change in 2004, it changed its corporate name to Water in the fall of 2014.

Water operates exclusively in the area of oilfield waste management and water disposal for the petroleum industry, with a particular expertise in managing wastewater associated with fracking. Water does not serve any residential customers or general commercial businesses. It operates in Alberta, Saskatchewan, British Columbia, North Dakota and Texas, with its head office in Red Deer.

At one point in time, Water had an office in Grande Prairie, but this location was closed in 2015. [ 5 ] Given the nature of its business, Water does not engage in broad-based advertising and limits its advertising to potential customers in the petroleum industry, as opposed to the general public. [ 6 ] In January of 2015, counsel for Utilities issued a cease and desist letter to Water requesting that Water discontinue any use of the term “Aqua Terra” in association with its business. In April 2015, Utilities launched a lawsuit against Water in Federal Court alleging trade-mark infringement.

At the time of the hearing before this Court, the Federal Court action had not progressed beyond the pleadings stage. [ 7 ] On December 8, 2015, Utilities requested that the Corporate Registrar direct Water to change its name. Utilities’ request was based upon the argument that the two corporate names were confusingly similar. In her decision dated July 7, 2016, the Registrar found that the names were confusingly similar and directed that Water change its name. Specifically, the Registrar found that the name Aqua Terra Water Management Inc. contravened s 12(1)(

c) of the Act and s 4(5) of the Regulation . While the Registrar speaks of a contravention of s 4(5), given the wording of the Regulation, it is clear she must have meant that because similarity had been established as per s 4(5), the name was in contravention of s 4(1) of the Regulation. Statutory Framework [ 8 ] The test for confusion under the Business Corporations Act is governed by both that Act and the associated Regulation . In particular, sections 12 and 13 of the Act and sections 4 and 15 of the Regulation are relevant to this appeal. [ 9 ] Section 12(1) (

c) of the Act provides that a corporation shall not have a name that is similar to the name of an existing corporation, “if the use of that name is confusing or misleading”. Under s 12(1)(d), no Alberta corporation can have a name that does not comply with the Regulation .

Section 13 of the Act directs that if a corporate name contravenes

section 12, the Registrar “may, by notice in writing, giving the Registrar’s reasons, direct the corporation to change its name” to a name approved by the Registrar. [ 10 ]

Section 4 of the Regulation deals with similar and identical names and provides that: 4(1) A corporation...may not have a name that is similar to the name of a corporate person unless that person consents in writing to the use of the name in whole or in part. [...]

(5) For the purposes of subsections (1), (2) and (4), a name is similar if it is (

a) a name that would reasonably lead to the inference that the corporation or extra-provincial corporation bearing the name is or would be associated or affiliated with the corporate person, dissolved body corporate or person proposing the name if the corporation or extra-provincial corporation and the corporate person, dissolved body corporate or person proposing the name are not or will not be associated or affiliated, or (

b) a name whose similarity to the name of the corporate person or dissolved body corporate or to the proposed name would lead someone who has an interest in dealing with the corporate person, dissolved body corporate or person proposing the name to deal with the corporation or extra-provincial corporation bearing the name in the mistaken belief that he or she is dealing with the corporate person, dissolved body corporate or person proposing the name. [ 11 ]

Section 15 of the Regulation sets out the criteria that the Registrar may consider in determining whether a business name contravenes either the Act or the Regulation: 15 In determining whether a name contravenes the Act or this Regulation , the Registrar may, without limitation, consider the following: (

a) the distinctiveness of the name or any element of it and the extent to which the name has become known;

(

b) the length of time the name has been in use; (

c) the nature of the business carried on under or associated with the name, including the likelihood of any competition among businesses using such a name; (

d) the nature of the trade with which a name is associated, including the nature of the goods or services and the means by which they are offered or distributed; (

e) the degree of similarity between the name and another name in appearance or sound; (

f) the geographic area in Alberta in which the name is likely to be used. Grounds for appeal [ 12 ] Water appeals the Registrar’s decision on three grounds, namely: (1) that the decision was unreasonable; (2) that the decision failed to satisfy the Registrar’s statutory obligations to give reasons, and; (3) that the process followed by the Registrar was procedurally flawed. It seeks a stay and asks that the Registrar be directed to reverse her decision.

Standard of Review [ 13 ] The parties agree that the question of whether the Registrar improperly concluded that the name Water is similar to the name Utilities so as to be confusing or misleading is reviewable on the reasonableness standard: Brian Neil Friesen Dental Corp v Manitoba (Director of Companies Office) , 2011 MBCA 20 (“Brian Neil”) at para 84 . [ 14 ] The adequacy of reasons is not a stand-alone ground for appeal, and Water did not argue as such.

However, without adequate reasons, it is difficult for a reviewing court to identify whether certain evidence was considered, and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the evidence and law. Insofar as a standard of review can be said to apply to questions of procedural fairness, it is correctness.

a) The reasonableness standard [ 15 ] The reasonableness standard was described in Dunsmuir v New Brunswick , 2008 SCC 9 (“Dunsmuir”) at para 47 : Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 16 ] Water takes the position that the Registrar’s decision falls short of the reasonableness standard with respect to both the decision-making process as well as the outcome. As concerns the process, Water argues that the Registrar engaged in no analysis of the legal and factual issues. Rather, it asserts that she simply repeated the relevant legislation, noted the parties’ submissions, and then concluded on each point absent any independent analysis.

It argues that because the Registrar simply stated bald conclusions, the parties are unable to discern why or how her decision was reached. [ 17 ] Water submits that the lack of analysis makes it very difficult for a reviewing court to discern whether the Registrar’s result falls within a range of possible outcomes.

While it notes that s 13 of the Act is permissive in nature, in instances where the Registrar does decide to give notice in writing directing a name change, she is bound to provide reasons for so directing. [ 18 ] Utilities acknowledges that the Registrar’s decision is not perfect and that the decision is not as clear as it could have been. However, it argues that perfection is not the standard: Anthem Riverfront Holdings v Calgary (City), 2017 ABQB 356 at para 37 .

While Utilities concedes that the Registrar could have engaged in a more fulsome analysis, it emphasises that the deferential standard requires “...a respectful attention to the reasons offered or which could be offered in support of a decision”: Dunsmuir , para 48 , emphasis added. [ 19 ] Utilities pointed to a number of authorities that it submits are instructive as to how the deferential standard should be properly applied in this instance.

In Newfoundland and Labrador Nurses’ Union v Newfoundland & Labrador (Treasury Board) , 2011 SCC 62 (“Newfoundland Nurses”), the Court reiterated the requirement to look not only at the actual reasons offered in support of a decision, but also to those which could have been offered. It continued on to endorse the principle that “...even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them ”: para 13, emphasis in the original.

A similar approach was adopted by our Court of Appeal in ATA v Buffalo Trail Public Schools Regional Divisions No 29 , 2014 ABCA 407 at para 14 . [ 20 ] While Water acknowledges the above instructions, it cautions this Court against engaging in an exercise whereby it imports its own analysis for that of the tribunal under the guise of “supplementation”.

It points to the following quotation from the majority’s decision in Khosa v Canada (Minister of Citizenship & Immigration) , 2009 SCC 12 (“Khosa”) at para 63 , in support of its position: Although the Dunsmuir majority refers with approval to the proposition that an appropriate degree of deference "requires of the courts "not submission but a respectful attention to the reasons offered or which could be offered in support of a decision"" (para. 48 (emphasis

added)), I do not think the reference to reasons which "could be offered" (but were not) should be taken as diluting the importance ofgiving proper reasons for an administrative decision, as stated in Baker v. Canada (Minister of Citizenship & Immigration) (SCC), [1999] 2 S.C.R. 817 (S.C.C.), at para. 43. [21] Water relies on Brian Neil in support of its argument that a decision which merely recites the submissions and evidence of theparties and then states a conclusion will not satisfy the Dunsmuir criteria.

Rather, it argues, a decision maker must set out its finding offact and the evidence upon which such findings were made, and apply the law to those facts. In Brian Neil, the aggrieved company madean argument similar to the one at bar.

It argued – and the Court found – that in refusing to cancel a business name registration pursuant toManitoba’s Business Names Registration Act, the Director correctly identified the applicable legislation, listed the evidence submitted bythe parties and then summarily concluded that while there was some similarity in comparing each of the company names, it was not ofsuch a degree to merit directing a change under that Act. [22] In finding that the Director’s conclusory reasons did not come close to the level of articulation required in Dunsmuir, theCourt held, at para 92 that: ...Good reasons will address the major points in issue.

They will explain how and why the decision-maker reached the decision it did,setting out the facts, the law and the reasoning which formed the basis for the decision.

They will also show that the decision-maker didnot fail to consider the arguments and evidence presented by the parties, although, as noted by the Supreme Court of Canada in R.E.M.,not all the evidence need be recited and a detailed description of the reasoning process followed is unnecessary "so long as the findingslinking the evidence to the verdict can be logically discerned" (at para. 20). [23] I note that Brian Neil was decided before Newfoundland Nurses and the corresponding direction by our Supreme Court todetermine whether limited reasons might be supplemented.

The Court in Brian Neil engaged in two separate processes, noting (at para89) that the task of assessing the adequacy of reasons given by an administrative tribunal must be separated from the task of assessingthe substantive decision made. As noted above, this is no longer the mandated approach. [24] The requirement to give reasons and the propriety of supplementing in certain circumstances was more recently commentedupon by our Supreme Court in Delta Air Lines Inc v Lukács, 2018 SCC 2 (“Delta”).

The majority in Delta held that the case before itwas not one where supplementing the tribunal’s reasons could render the decision reasonable in that, inter alia: ...it would undermine, if not negate, the vital role of reasons in administrative law. Dunsmuir still stands for the proposition thatreviewing courts must look at both the reasons and the outcome. While this does not require "two discrete analyses" (NewfoundlandNurses, at para. 14), it means that reasons still matter.

If we allow reviewing courts to replace the reasons of administrative bodies withtheir own, the outcome of administrative decisions becomes the sole consideration. With that approach, as long as the reviewing courtcould come up with some possible justification — even if it contradicted the reasons given by the administrative body — the decisionwould be reasonable. This goes too far.

It is important to maintain the requirement that where administrative bodies provide reasons fortheir decisions, they do so in an intelligible, justified, and transparent way. [25] With the above principles in mind, I acknowledge that in reviewing the Registrar’s decision, I must look both at the reasonsgiven, as well as those which could have been offered in light of the record before her. Where the reasons given are limited, I must seekto supplement them, on the basis of the record.

As per Delta, the act of “supplementing” is to be distinguished from the act of“replacing”. [26] I must keep in mind that on the deferential standard, as long as the process and the outcome fit comfortably with the principlesof justification, transparency and intelligibility, it is not open to this Court to substitute its own view of a preferable outcome: Khosa,para 59. Indeed, “courts must be careful not to confuse a finding that a tribunal's reasoning process is inadequately revealed withdisagreement over the conclusions reached by the tribunal on the evidence before it”: Newfoundland Nurses at para 21.

Nor is thisCourt entitled to re-weigh the evidence or factors considered by a board and substitute its findings on the relevant evidence andconsiderations: Canada Safeway Ltd v Calgary (City), 2016 ABQB 200 at para 18.

b) Was the Registrar’s decision reasonable? [27] The Registrar’s decision commences with her statement that she has reviewed the representations made by both parties, alongwith the relevant legislation (which she correctly points to as being sections 12 and 13 of the Act and sections 4 and 15 of theRegulation), as well as the case law presented.

She states that s 4(5) of the Regulation requires a determination as to whether the qualitiesof the two business names are so similar that the use of the name Water is likely to confuse members of the public who may wish to dealwith Utilities to deal with Water in the mistaken belief that they are dealing with Utilities. Although not expressly stated, the Registrarappears to have based her analysis on s 4(5)(

b) of the Regulation, as section 4(5)(

a) deals with cases where an incorrect inference ofaffiliation between two non-affiliated companies is made based upon corporate names. She expressly finds that Water’s namecontravenes s 12(1)(

c) of the Act. [28] The Registrar then goes on to note that s 15 of the Regulation sets out criteria which she may consider in determining whethera name contravened the legislation. The Registrar goes through each of the factors set out under

section 15 and notes the parties’submissions on each point. Following this exercise, she reviews what she determined to be the applicable case law, restated thelegislative tests, and concluded that the names Water and Utilities were confusingly similar. [29] Water submits that on the evidence before the Registrar, such a finding is unreasonable. In sum, Water’s argument is that thetwo companies are engaged in completely different activities. Water’s business relates entirely to the disposal and management ofparticular wastewaters generated by oil and gas operations (specifically the petroleum production process).

As such, its services areprovided to a small number of customers in the oil and gas sector. It does not, and cannot, process wastewater produced by residentialhouseholds and commercial businesses, as the various facilities required for each type of wastewater management are unique. Watertakes the position that the while the services offered by Utilities include the general category “wastewater” this does not mean that thereexists any overlap or similarity between the services offered by Utilities and those offered by Water.

[30] Water asserts that as it does not perform any functions of a utility company and as the two entities have completely differentcustomer bases, there is no way someone seeking a utilities service would confuse the two names and end up dealing with a petroleumwaste management company (or vice versa). It argues that because the services offered by the two companies are so distinct, it would beimpossible for someone looking to deal with Utilities to become confused and inadvertently deal with Water.

Thus, given the differencein services provided, when the entire name of each company is examined, it is clear that no reasonable possibility of confusion exists. [31] Water takes the position that in coming to the contrary conclusion, the Registrar erroneously misstated the relevant legal test,ignored material aspects of its application, and either misapplied (or given her lack of analysis, failed to apply) the test to the facts.

Waterargues that the Registrar committed both general misstatements/misapplications of the law and that she erred in evaluating the s 15factors provided in the Regulation (being those factors which assist in informing on whether a name is similar in the manner described ins 4 of the Regulation). [32] As such, I review her application of the relevant law as a whole, and then turn specifically to a review of her findings on the s15 factors.

General principles and the test for confusion [33] In arguing that the Registrar misunderstood or misapplied the law, Water submits that she erred in her assessment of theconcept of confusion and in evaluating instances of confusion. It takes the position that the Registrar failed to apply the relevantstandard, one that speaks to the applicant having to demonstrate a “probability” of deception or confusion.

Moreover, Water asserts thatthe Registrar erred by not focusing her consideration upon customers or potential customers of the parties in assessing the likelihood ofconfusion, and upon whether the type of confusion allegedly demonstrated meets the requirements of the legislation. [34] I turn first to whether the confusion analysis adopted by the Registrar was unreasonable as it pertains to the relevant standardrequired. (

a) Probability versus possibility of confusion [35] In its original submissions before the Registrar, Water relied upon Re CC Chemicals Ltd, (ON CA), [1967]2 OR 248 (ONCA) (“CC Chemicals”), Action Plumbing Ltd v Alberta (Registrar of Companies) (1976), 1976 ALTASCAD 227, 1 AR 296 (Sup Ct AD) (“Action Plumbing”), and Canadian Motorways Ltd v Laidlaw Motorways Ltd, (SCC), [1974] SCR 675 (SCC) (“Canadian Motorways”) in support of what it argues constitutes the proper approach to the confusionanalysis.

In CC Chemicals, the Court determined that the appropriate question was whether the name in issue was so similar to that ofthe objecting company that “it looked as if deception would occur”: para 35.

In Action Plumbing, the Alberta Supreme Court (AppellateDivision) relied in CC Chemicals in stating, at para 4: ...the true test is whether the names of the two companies, put side by side, either visually or orally are the same or similar in the sensethat the similarity of the names would probably, not possibly, deceive. [36] In its written argument both before the Registrar and before this Court, Water took the position that the threshold is a highone; that there must be a probability of confusion as opposed to a possibility.

It further asserts that this probability must be demonstratedamongst the class of persons who have an interest in dealing with the business in question. [37] As pointed out by Utilities, the current wording of the legislation does not base the analysis on whether the use of a name is“likely to deceive”, but rather on whether the use of the name “is confusing or misleading”: s 12(1)(

c) of the Act. [38] In her reasons, the Registrar does not expressly state that there must exist a “probability” of confusion. In addressing this issue,she states (at page one) that she must determine whether the qualities of the two names are so similar that use of the name Water “islikely to confuse” members of the public.

Subsequently, in her ultimate holding at page six of her reasons, she states that: It is my view that the use of the name Aqua Terra Water Management Inc. could lead someone who has an interest in dealing withAquatera Utilities Ltd. to deal with Aqua Terra Water Management Inc. in the mistaken belief that he or she is dealing with AquateraUtilities Ltd. Due to the confusingly similar name of Aqua Terra Water Management Inc. to that of Aquatera Utilities Inc., the nameAqua Terra Water Management Inc. contravenes section 4(5) of the Regulation and section 12(1)(

c) of the Act. (emphasis added) [39] In its argument before the Registrar, Utilities agreed that the Registrar must determine whether the names at issue were“probably” confusing.

However, it argued that under the first impression test used in trade-mark analysis, “probably” simply meant“more likely than not” and suggested the determination must be made using a “greater than 50%” standard. [40] While it is possible that the Registrar’s use of the terms “likely” to confuse and “could” confuse may denote two differentstandards, the deferential approach to review requires an acknowledgement that the Registrar possesses particular expertise ininterpreting her home statute. As such, her use of the phrase “likely to confuse” must connote a probable confusion, as opposed to apossible confusion.

In any event, her analysis proceeded on a finding that actual confusion has been demonstrated. I note that Water didnot pursue this line of argument in any real depth during its oral submissions. (

b) Class of persons included in s 4(5)(

b) of the Regulation [41] Rather, Water’s argument focused on whether the Registrar unreasonably defined the class of persons relevant to theconfusion analysis. In its written submissions before both the Registrar and this Court, Water took the position that confusion is to beconsidered with reference to the parties’ customers and prospective customers, as stated in CC Chemicals. In that case the Court definedthe applicable analysis as follows:

... so, unless a person is likely to deal with the corporation to be incorporated in the mistaken belief that he is dealing with anothercorporation, it cannot be said that, within the meaning of the Corporations Act, the similarity of names is likely to deceive him.Accepting this, I infer from the expression "likely to deceive" that the similarity must be such as to cause a person, who had an interest indealing, or reason to deal, with "A" to deal with "B" in the belief that he was dealing with "A".

If this be the test, as I conceive it to be,the likelihood to deceive must be assessed by reference to the impact of the words in the name on the persons or class of persons withwhom the objector seeks to have business dealings, that is, his customers or prospective customers... [42] The analysis in CC Chemicals was adopted by Laskin J in Canadian Motorways, and subsequently in this Province in ActionPlumbing. [43] Although the Registrar does not expressly state this, her finding that “confusion has been demonstrated” could only have beenbased upon the affidavit evidence tendered by Utilities on this point.

Before both the Registrar and this Court, Utilities took the positionthat its affidavit evidence demonstrated 57 instances of confusion over a 12-month period. Utilities argued that its examples of confusiondemonstrated that the similarity of names between the two parties lead customers, vendors and suppliers to believe that Utilities andWater were associated in some fashion, and established that those entities who wished to deal with one of the companies were frequentlyand mistakenly reaching out to the other (thus, it argues, proving similarity under either s 4(5)(

a) or 4(5)(

b) of the Regulation). [44] Water takes issue with the evidence tendered in an attempt to establish confusion on three broad grounds. First, it states thatthe vast majority of the affiants are employees of Utilities or related entities and that the evidence is therefore self-serving and has notbeen tested on cross-examination. It argues that in many instances, the affiants were referring to corporate logos and trademarks withoutreferring to the actual corporate names. Secondly, it submits that Registrar defined the wrong relevant audience for the confusionanalysis.

Lastly, it submits that the actions described in the affidavits do not evidence the type of confusion sufficient to warrant a findingthat the name contravened s 12 of the Act and/or s 4(5)(

b) of the Regulation. [45] In addressing Water’s first argument, it is clear that much of the evidence comes from Utilities’ employees. However, I notethat Water also relied upon affidavit evidence of one of its employees, namely Ryan Tamblyn, Water’s manager of BusinessDevelopment in support of its position that Water’s customers and potential customers have never demonstrated any confusion as towhich company they were dealing with. The affidavit also references a conversation that Mr. Tamblyn had with another employee ofWater, a Mr. Unruh.

While this type of evidence may technically constitute hearsay, the rules governing courts as to the administrationof evidence do not generally apply to proceedings before administrative tribunals. It is typically open to tribunals to admit hearsayevidence, as long as an assessment as to the quality of the purported evidence is made: see Pridgen v University of Calgary, 2012 ABCA139 at para 59. [46] I note that in a number of instances, the affidavit evidence tendered by Utilities was supported by the receipt of documentssuch as invoices, purchase orders, and the like.

Corroborating evidence typically strengthens the reliability of the claims being made.The evidence tendered by Utilities touched upon conversations had with customers, vendors, suppliers and more, while the evidencetendered by Water was limited to whether customers or potential customers had demonstrated confusion, which, given the analysisadopted by the Registrar, seemingly rendered Water’s evidence less compelling.

While certain examples provided by Utilities includeemployees expressing confusion over corporate logos/trademarks, in her reasons the Registrar expressly stated (albeit in a differentcontext) that information regarding corporate logos was not germane to a corporate name dispute. [47] I note further that the evidence tendered by Mr. Unruh through Mr. Tamblyn’s affidavit does not refer to an incident ofconfusion deposed to by Mr. Dixon, an employee of one of Utilities’ vendors.

This discrepancy was drawn to the attention of theRegistrar in Utilities’ supplemental brief and may have influenced her conclusions as to the weight to be placed upon each parties’evidence. [48] While the Registrar does not expressly refer to the specific evidence upon which she has grounded her finding of actualconfusion, any one of the factors discussed above provides support for the Registrar’s obvious preference toward Utilities’ evidence asopposed to Water’s evidence on this question.

On a reasonableness test, "it is not for the courts to reweigh the evidence considered bythe tribunal": Canadian Artists' Representation/Le Front des artistes canadiens v National Gallery of Canada, 2014 SCC 42 at para30, yet this precisely what Water is encouraging. [49] The Registrar was entitled to rely on the affidavit evidence tendered largely through the parties’ employees, to the extent thatshe found it reliable, which she clearly must have, given her finding that actual confusion had been demonstrated.

The weight she placedupon the evidence is not something this Court should lightly disturb on appeal. [50] As referred to above, Water also takes the position that even if one were to accept the affidavit evidence, the Registrar erredin relying on instances of confusion beyond customers and potential customers, which it states is the relevant audience for the confusionanalysis, as defined by case authorities. [51] Water relies on CC Chemicals and Canadian Motorways in asserting that the Registrar should have focused on customersand potential customers in determining confusion.

Water further asserts that the relative sophistication of the customers in question mustbe assessed. The Registrar expressly acknowledged this argument at the bottom of page two of her decision. [52] Using language similar to that found in CC Chemicals, the Registrar stated that the test under section 4(5) of the Regulationrequired a determination as to whether the qualities of the two names were so similar that the use of the name Water was likely toconfuse members of the public who may wish to deal with Utilities, and who instead deal with Water in the mistaken belief that they aredealing with Utilities.

However, she interpreted the language “someone who has an interest in dealing with the corporate person” asincluding more than just customers and perspective customers. Rather, in interpreting s 4(5)(

b) of the Regulation she stated that thisphrase “is not limited solely to customers but also includes vendors, suppliers, contractors, the general public, etc.” [53] Utilities takes the position that the authorities relied upon by Water in support of its argument that the analysis should belimited to customer or potential customers predate the current language of the legislation. It points to Unity Insurance Brokers(Windsor) Ltd v Unity Realty & Insurance Inc (2005), (ON SCDC), 251 DLR (4th) 368 (Ont SCJ) (“Unity”) in

support of its submission. Although the Registrar did not expressly mention Unity in her reasons, I note that it was included in the bookof authorities Water had provided to her. [54] Unity dealt with two similarly-named insurance companies. While there was only one example of confusion on the part of acustomer of either party, the evidence established a great deal of confusion between the parties in the minds of insurance brokers,insurers and reinsurers.

In interpreting the phrase “someone who has an interest in dealing with that person”, the Court remarked thatboth CC Chemicals and Canadian Motorways were decided under previous versions of the legislation that did not contain the presentdefinition. [55] The Court went on to note that the concept of defining the class of persons likely to be deceived in the legislation was firstintroduced in 1980 with the introduction of the phrase “someone who had an interest in dealing, or reason to deal with” the corporateperson.

The Court concluded that to the extent that CC Chemicals and Canadian Motorways limit the consideration of the class ofpersons likely to be confused to customers or prospective customers, such limitation was no longer applicable under the revisedlegislation.

The Court thus found that the class of persons likely to be confused included all persons having an interest in dealing with thecorporation including lenders, suppliers, contractors and other business associates in addition to customers: at para 20. [56] In support of its conclusion, the Court reviewed other Ontario cases that had been decided since the legislative change, whichalso encompassed a broader definition of the applicable class of persons. Unity is an Ontario case and does not appear to have beenadopted in Alberta.

However, the similarity in the language between the two provinces’ applicable legislation means that a comparableanalysis might be performed in relation to our legislation. Clearly, this was the approach being advocated by Utilities, as a number of theinstances of alleged confusion occurred between vendors/suppliers in addition to customers. [57] Given the above, it cannot be said that the Registrar was unreasonable in defining the class of persons who may be confusedin a similarly broad fashion.

Deference is required when an administrative tribunal is involved in interpreting its home statute with whichit possesses particular familiarity: Whatcott v Saskatchewan Human Rights Tribunal, 2013 SCC 11 at paras 166-168. Theinterpretation of the phrase “someone who has an interest in dealing with the corporate person” was well within the expertise of theRegistrar. Her

interpretation is consistent with judicial

interpretation of the same phrase, albeit under different legislation. [58] Her finding that the class of persons defined in s 4(5) of the Regulation is more broadly defined acts to diminish the relevanceof Water’s argument that the sophistication of the customer is a relevant consideration.

While Water submitted that it deals with only aselect number of sophisticated customers, it did not advance a similar argument in regards to vendors/suppliers and the like. [59] In oral argument, Water took the position that even if the definition of “someone having an interest in dealing with thecorporate person” could include lenders, suppliers and the like, the Registrar was nonetheless overbroad in including “the generalpublic” in her definition.

Even if this is so, the evidence tendered by Utilities relies heavily on instances of confusion between customersor past customers, clients, and service providers as opposed to the general public, and as such, nothing much turns on this alleged error. (

d) Level of confusion to be demonstrated [60] Finally, Water argued that even if confusion had been demonstrated amongst Utilities’ customers, suppliers and vendorsbecause of the use of Water’s name, the type of confusion Utilities is referencing does not rise to level of confusion required to dictate aname change when considered alongside all of the applicable factors. Water states that Utilities’ examples of confusion consist largely ofmistaken phone calls and emails where persons looking to contact Water have mistakenly contacted Utilities.

It stresses that there is noevidence of an entity looking to deal with a utility company mistakenly dealing with an oilfield waste management company instead.

Itsubmits that the Registrar erred in focusing on the inconvenience suffered by Utilities as a result of misdirected emails and phone calls (aprivate grievance) instead of ensuring the protection of the public. [61] In its submissions before the Registrar, Water relied largely on Bell Insurance Agencies Ltd v Bell & Cross InsuranceAgency Ltd (1983), (MB KB), 145 DLR (3d) 224 (Man QB) (“Bell”) in support of its argument that a couple ofinstances of misdirected communications do not found a basis for ordering a name change based upon confusion. [62] In Bell, the Court addressed whether similar business names (both surnames) were likely to confuse or mislead where twocompanies were both involved in the business of general insurance in the same district of the City of Winnipeg.

The applicant companyrelied on a record of telephone calls of individuals trying to reach the respondent, as well as a letter containing a policy of the respondentbut mistakenly mailed to the applicant, as evidence of confusion. The telephone calls totalled 33 calls over a 5-month period.

The Courtconcluded that the evidence of confusion amounted to approximately one mistaken telephone call per week and one instance ofmisdirected mail, referring to such evidence as “hardly overwhelming”: para 38. [63] In so finding, the Court reiterated that the aim of the legislation was not to address private grievances between two companiesbut was for the benefit of the public who are likely to be confused.

Of note is the fact that the Court found that the distinction betweenthe two names was at least as significant as the difference accepted in CA Fitzsimmons Co v AH Fitzsimmons & Co (1975), 20 CPR(2d) 285 (Ont Div Ct) where it was held that the differing initials preceding each family name was enough to render the namesdistinctive. This is contrasted to the Registrar’s analysis pertaining to the degree of similarity of the parties’ names. [64] In arguing before the Registrar, Utilities took the position that this was not a situation involving a few minor instances ofmistaken contact information.

Rather, it likened its case to that of Unity, where the majority found that confusion had been demonstratedwhere insurance binders, insurance information, accounts for insurance premiums and personal information were sent to the wrong“Unity Insurance”. The majority concluded that this type of confusion consisted of more than simple mailing errors or address errors.Utilities argues that similar to Unity, customers, suppliers and vendors have been providing business documents to Utilities in error dueto confusion between the parties’ names.

The types of documents mistakenly emailed or sent to Utilities consisted largely of invoices andsupporting documents (for example, information on accounts receivable, a bill of lading and a field ticket). It also pointed out that one ofWater’s customers, AltaGas, mistakenly emailed Utilities, sending it a proposed master services agreement as between AltaGas andWater.

[65] Both the Bell case and the Unity case were discussed in the parties’ submissions before the Registrar. Her finding thatconfusion had been demonstrated is consistent with the approach taken in Unity, that is, the sending of invoices and supportingdocuments to Utilities by mistake evidenced “something more” than simple mailing or address errors.

While again the Registrar does notexpressly state the basis for her finding that confusion had been established, it is clear that she did not conclude that the instances ofmisdirected phone calls and emails (including attached documents) were limited to establishing a private grievance, or otherwise were ofso trivial a nature to preclude a finding of confusion.

This was a specific factual finding made by the Registrar and as such, it should notbe lightly disturbed. [66] Moreover, the Registrar expressly relied on Merchant Commercial Real Estate Services Inc v Alberta (Registrar ofCorporations) (1997), (AB KB), 199 AR 12 (ABQB). In that case, both entities (‘Merchant Commercial Real EstateServices Inc.’ and ‘Merchant Realty Ltd.’) were engaged in the commercial real estate business in Calgary. In confirming the decision ofthe Registrar, the Court relied on affidavit evidence demonstrating confusion resulting from the similarity of the names.

The evidenceconsisted of materials and correspondence sent to Merchant Commercial at Merchant Realty’s address, and envelopes addressed toMerchant Commercial, but using Merchant Realty’s mailing address. The Court found that the above evidence was consistent with afinding that Merchant Commercial’s use of its name was confusing and misleading and therefore prohibited by s 12(1) of the Act.

Again,this appears to be an example of confusion being demonstrated by misdirected materials and correspondence. [67] I note that in Twin City Equipment Sales & Rentals Ltd v Twin City Excavating Ltd (1980), 80 CPR (2d) 87 (“Twin City”),this Court did not find that evidence of billing errors made by various suppliers (both in invoicing the wrong company and in invoicingthe correct company but mailing the invoice to the other company) constituted sufficient evidence of confusion so as to warrant an orderfor a change of name.

However, Twin City is an older judgment and the Court clearly looked to whether confusion had beendemonstrated in the minds of the customers. [68] The above case law seems to indicate that a finding of just what constitutes an appropriate level of confusion appears to liewithin the discretion of the Registrar. In the case at bar, Utilities arguably provided evidence of something more than just simple mailingerrors by establishing that business documents were being mistakenly directed to the wrong corporate entity.

The Registrar must haveconcluded that such occurrence were sufficient to ground a finding of actual confusion. Her implicit finding on this point are againentitled to deference. Conclusion on the general principles and test for confusion [69] Overall, the Registrar’s finding that the phrase “someone who has an interest in dealing with that person” includes more thanjust customers is one which falls within a range of acceptable conclusions. While her analysis on this point could have been clearer, therecord included evidence of instances of confusion amongst customers, vendors, suppliers and the like.

Such evidence, coupled with caselaw supportive of a more inclusive definition, leads this Court to conclude that the Registrar’s finding on this point fell within the rangeof acceptable, rational conclusions. [70] Her further finding that actual confusion had been demonstrated amongst this class of persons again falls within the spectrumof possible conclusions on this point, especially given that such a finding appears to be fact-specific.

Again, it is not open for this Courtto re-weigh the evidence considered by the Registrar. [71] It is against these findings that I engage in a review of her analysis of the s 15 factors. The

Section 15 factors [72] Water argues that the Registrar’s erroneous approach to the law renders her analysis of the s 15 factors unreasonable. I willbriefly review her findings – to the extent that they are either stated or might be reasonably inferred – in relation to each factor. Again,while her analysis of these factors could have been more fulsome, I am mindful of the direction to supplement the reasons, payingattention to those reasons which may have been offered given the evidence and argument before the Registrar, to the extent that suchsupplementation is supported by the record. (

a) The distinctiveness of the name, or any element of it, and the extent to which the name has become known. [73] Before the Registrar, Utilities took the position that ‘aquatera’ is a coined term that does not describe the services it offers. Itargued that as an invented, unique and non-descriptive name, it was entitled to greater protection than an everyday word.

In makingsubmissions before the Registrar regarding acquired distinctiveness, Utilities outlined the various steps it had taken to publicize its nameand trade-mark. [74] In Water’s submissions before the Registrar, it argued that the name Aquatera Utilities Inc. was not inherently distinctive, norwas acquired distinctiveness demonstrated. Water took the position that ‘Aquatera’ was simply a portmanteau of two words (‘aqua’ and‘terra’) connoting a connection to ‘water’ and ‘earth’ respectively, which were common to many businesses engaged in servicespertaining to these elements, or to the environment generally.

In so arguing, it provided the Registrar with a list of results of a NUANSsearch as well as a Google search identifying several companies having names containing the terms ‘aqua’ and ‘terra’ or derivativesthereof. [75] Water further submitted that to the extent that Utilities altered the spelling of, and combined the two terms, this constituted amore unique way of using the terms, thereby enhancing the distinction between ‘Aqua Terra’ and ‘Aquatera’.

Water also argued thatwhile Utilities laid out the steps it had taken to promote itself, it provided no evidence as to the impact of its advertising and otherpromotional activities on the public.

[ 76 ] The Registrar noted each of the above arguments in her reasons. She was largely critical of Water’s approach, holding that she did not find the examples of the eight company names produced as a result of the NUANS search supportive of Water’s arguments regarding the lack of distinctiveness. Specifically, she held that: Water discussed the numerous uses of the terms ‘aqua’ and ‘terra’ and provided 8 examples of business entities using those terms.

In my opinion, however, my review of the names did not disclose a corporate name that would indicate similar business activities as to those of the corporations in this dispute, e.g. the descriptive elements in the 8 examples included words such as ‘engineering’, ‘enterprises’, ‘health’ etc., or were trade names which are not germane to an Alberta corporate name dispute. [ 77 ] She was similarly critical of the names referenced in the Google search, noting that the corporations indicated did not appear to be in the same industry or were not geographically relevant. [ 78 ] In so concluding, the Registrar appeared to adopt the argument put forth by Utilities in its submissions before her.

A review of the record shows that Utilities relied on Eclectic Edge Inc v Gildan Apparel (Canada) LP , 2015 FC 1332 (FCJ) (“Eclectic Edge”) in arguing that the evidence relied upon by Water was irrelevant because it did not provide compelling evidence that the words in issue were used in the relevant market sector or relevant geographic area (see paras 75-92). In Eclectic Edge , the Court found that the evidence lead by Eclectic in support of its trade-mark application failed to establish that there had been use by third parties such that the word ‘secret’ had become common to the trade.

The Court found that many of the examples relied upon either pertained to business sectors outside of the scope of the wares at stake, were not in the same market, or had domain names which were inactive or foreign. [ 79 ] Utilities argued that similar to the facts in Eclectic Edge , the evidence before the Registrar did not establish that the companies referred to by Water offered similar wares or services as Utilities did, nor that they were offering their goods or services in Alberta.

It took the position before the Registrar that the corporate names did not constitute examples upon which she could conclude that the term ‘Aquatera’ had lost distinctiveness due to widespread use by others. It is clear that the Registrar adopted Utilities’ argument on this point. The evidence before her consisted of a number of examples of businesses in completely different fields (for example, naturopathic care, watches, and beverages) or which appeared to operate outside of Canada.

I note that Aquatera Environmental Ltd. provides environmental consulting services in Alberta. [ 80 ] It was open to the Registrar to find that the proffered business names were not particularly compelling examples demonstrating a lack of distinctiveness on the facts before her. While this evidence may have been interpreted differently by a different individual sitting as Registrar or by this Court, that does not render the Registrar’s analysis unreasonable. Rather, there was evidence and at least some case authority supporting her position that the examples provided by Water lacked relevance.

Again, when a question does not lend itself to one precise answer, a reasonable

interpretation may be any one of a number of possible conclusions within a range. [ 81 ] The Registrar’s findings in this regard effectively diminish the remaining arguments mounted by Water, namely that the use of the terms ‘aqua’ and ‘terra’ by numerous corporations with various spellings has caused the terms to become non-distinctive. [ 82 ] While I agree with Water that the Registrar did not make an express finding as to the degree to which either party’s name was distinctive, I am not persuaded by its argument that the Registrar undertook no analysis of how the question of distinctiveness affected the determination as to similarity and confusion.

While it was not expressly stated, it is clear that the Registrar preferred Utilities’ submissions on this factor (i.e.: that some level of distinctiveness had been demonstrated). This implicit finding must be read alongside her explicit finding that confusion had been demonstrated on the evidence. [ 83 ] Finally, while a determination on the question of confusion is perhaps out of place in an analysis pertaining to the distinctiveness factor, the reasons are to be read as a whole and her finding on this point affects her analysis globally. (

b) The length of time the name has been in use [ 84 ] In analyzing this factor, the Registrar simply noted that Utilities has used its current corporate name since 2003, while Water did not begin doing so until 2014. While the Registrar provided no further analysis pertaining to this factor, I agree with Utilities that her statement speaks for itself and favours Utilities’ position. (

c) the nature of the business carried on under or associated with the name, including the likelihood of any competition among businesses using such a name; and (

d) the nature of the trade with which a name is associated, including the nature of the goods or services and the means by which they are offered or distributed [ 85 ] Similar arguments were made in relation to both of these factors, and as such, I shall address them together. [ 86 ] In arguing before the Registrar, Utilities took the position that both it and Water provide services related to the collection and treatment of wastewater.

Utilities stressed that both businesses service the oilfield or energy industry and pointed to the fact that both companies had booths at the 2015 Grande Prairie Petroleum Show as supportive of its claim that they both operate in the same industry. [ 87 ] As to the means by which the services are distributed, Utilities stressed that both businesses require customers to contact the business directly, as opposed to marketing through retail channels.

It also stressed that there were similarities in the means by which both companies offered their wastewater services to the public, in that both have their customers offload wastewater at specific wastewater plants.

Utilities stated that not only were several of its customers in the oil and gas industry, but that it regularly hires companies in this area to assist with the disposal of hydrocarbons that end up in its wastewater infrastructure. [ 88 ] Water disputed any similarity, arguing that the two entities are engaged in completely different businesses, providing very different services to different customers through different channels of trade. It supported this argument by pointing to the fact that each company was regulated by different bodies.

It stressed that even though both businesses may on occasion provide services in the same industry, Water’s services only relate to wastewater generated though oil and gas production, while Utilities deals only with sewage- related wastewater.

[ 89 ] Water stressed that there was simply no likelihood of any competition between the two companies, given that the two companies provide very different services. It emphasized that if a customer of Utilities attempted to offload sewage wastewater at one of its disposal facilities, they would be turned away, as Water’s facilities are incapable of treating sewage wastewater.

It also argued that the converse is true, while again reiterating that its sophisticated clientele would be unlikely to confuse a sewage wastewater facility with a fracking wastewater facility. [ 90 ] A review of the Registrar’s reasons indicate that she was well aware of each parties’ position regarding these factors, Although perhaps better addressed under the first factor (distinctiveness of the name, and the extent to which the name has become known) or in relation to the hardship argument, the Registrar examined the steps that both parties had taken to date in building up their presence, reputation and goodwill via advertising, website use, and social media etc. [ 91 ] As discussed further, below, the Registrar also discounted Utilities’ evidence relating to future business opportunities with affiliated companies (whereby Utilities would be directly competing in the same industry and treating wastewater generated by oil and gas production). [ 92 ] Before this Court, Water took the position that an analysis of these two factors was important as to significantly distinguish Water and its customers from Utilities and its customers.

I agree. The only conclusion to be drawn when analyzing these factors is that while Utilities and Water both deal with wastewater, they deal with very different types of wastewater. As such, while their customer base may overlap, these customers would not be looking to obtain the same type of service from Utilities (treating sewage wastewater) as they would from Water (treating industrial/fracking wastewater).

In this way, it would not be feasible for customers of Utilities to “deal with” with Water under the mistaken belief that they were dealing with Utilities, to the extent that “dealing with” means delivering sewage wastewater to Water’s treatment facilities. [ 93 ] However, this factor alone does not end the analysis. It is clear that the Registrar defined “someone who has an interest in dealing with Utilities” as including entities beyond customers or potential customers. As discussed above, she included vendors, suppliers, contractors and the like.

This definition must be borne in mind when reviewing her reasons and her analysis. [ 94 ] In concluding that the use of Water’s name could lead such entities to deal with one company in the mistaken belief that they were dealing with another company due to the confusingly similar nature of the two names, it is reasonable to infer that the Registrar concluded the general similarities between the nature of the businesses (wastewater treatment), caused entities such as vendors or suppliers to experience confusion.

Of course, these types of entities would be “dealing with” the parties in a much different fashion than customers would. Further, it seems clear that she defined “dealing with” in a broad fashion in relation to customers and former customers in that she did not limit such dealings to procuring the physical treatment of waste water. Again, deference is required, as the Registrar possesses particular expertise in interpreting her home statute. (

e) the degree of similarity between the name and another name in appearance or sound [ 95 ] A great deal of argument both before the Register and before this Court centered on the appropriate test to be used in analysing the degree of similarity between the two names. [ 96 ] Utilities argued that while the full names of each company contain different terms, which are descriptive of the services they offer (namely ‘utilities’ and ‘water services), the dominant features of both names are the words ‘aqua’ and ‘terra’.

It submits that it is these dominant aspects of the names that are the most important in determining the degree of similarity. It further submits that there was some evidence before the Registrar that in day-to-day operations, both businesses were commonly referred to by their first word(s), being either ‘Aquatera’ or ‘Aqua Terra’.

While there is a difference in spelling, these terms are phonetically identical and are similar in appearance. [ 97 ] In arguing before the Registrar, especially in its rebuttal submissions, Utilities took the position that the proper analysis is dictated by the principles governing trade-mark law. It submits that the proper approach is to determine whether there is an aspect of the name that is particularly striking in assessing the likelihood of confusion.

It relies, in part, on the confusion analysis described by the Court in Masterpiece Inc v Alavida Lifestyles Inc , 2011 SCC 27 (“Masterpiece”), a case involving a trade-mark registration. [ 98 ] In Masterpiece , the Court discussed the test for confusion under the Trade-marks Act , RSC 1985, c T-13 , noting that it did not demand a careful side-by-side examination of competing marks, but rather that: The test to be applied is a matter of first impression in the mind of a casual consumer somewhat in a hurry who sees the [mark] at a time when he or she has no more than an imperfect recollection of the [prior] trade-marks, and does not pause to give the matter any detailed consideration or scrutiny, nor to examine closely the similarities and differences between the marks. [ 99 ] Water disagrees with this approach, arguing that the “hurried consumer” approach is inappropriate when undertaking a corporate name comparison.

Rather, it asserts that the names must be examined as a whole. Water argues that a company cannot claim exclusive entitlement to a non-descriptive word, and that absent the non-descriptive term(s) ‘Aquatera’/‘Aqua Terra’, there are no remaining similarities between the two corporate names.

That is, the terms “water management” denote a very different business activity than the term “utilities” suggests. [ 100 ] In support of its argument, Water also advised that the NUANS report obtained by Accu-search advised that in its opinion, the name Water was “not confusingly similar to any of the corporate names appearing on the attached report”.

Utilities was one of the names identified in the report. [ 101 ] Water relied heavily on Janus Academy Society v Alberta (Registrar of Corporations) , 1998 ABQB 761 (“Janus”) in arguing its approach, and the Registrar expressly found this case to be one of the authorities most relevant to the dispute before her.

In that case, the Registrar ordered the applicant, Janus Academy Society (a non-profit organization operating a school for children with autism) to change its name based on its finding that the name was similar to the respondent, Janus Psychological Services Ltd. (a group of professionals providing a variety of counselling services). The evidence in Janus established that Janus Psychological Services had

received numerous calls enquiring whether the two businesses were affiliated. Confusion had also been alleged amongst various otherservice providers who had asked Janus Psychological Services about their establishment of a school for autistic children.

While decidedunder the Societies Act, RSA 1980, c S-18 and corresponding Regulation, the wording of that legislation is nearly identical to that foundin Alberta’s Business Corporations Act and Regulation. [102] In vacating the Registrar’s decision, this Court found that when examining the degree of similarity between the two names, that“absent the word Janus, which is not descriptive and to which the respondent has no exclusive entitlement, there is no degree ofsimilarity”: para 53. The Court advocated for the side-by-side approach discussed in Twin City, below.

I note that the Court ultimatelyconcluded that every other factor, outside of length of time that the name had been in use and perhaps geographic area, did not support afinding of similarity. [103] In Twin City, this Court held that the full names of the companies (“Twin City Excavating Ltd.” and “Twin City EquipmentSales & Rentals Ltd.”) showed a clear distinction between the two: para 13.

After reviewing the approach discussed in LaidlawMotorways, the Court went on to hold, at para 19: I do not understand that either the decision of Morrow J.A. in Action Plumbing or Laycraft J. in Bumper's as stating that the mere use ofone or more identical words is sufficient to require the registrar to change the name.

The issue is whether the similarity of names wouldbe likely to deceive having regard to the name, the businesses actually carried on by the two companies, the objects of the companies asdisclosed in the memoranda of association and having regard to the customers served by the companies and whether these customers canbe said to be knowledgeable and less likely to be deceived by any similarity. [104] As mentioned above, the Court in Twin City focused on the parties’ customers in determining whether deception had beenestablished.

In finding that it had not, the Court noted that the parties’ customers were largely engaged in the construction industry andwere more knowledgeable than members of the public at large.

Moreover, the Court’s finding that the phrase “Twin City” was merelydescriptive of the general locale in which the companies carried on business must be contrasted with the Registrar’s implied finding thatsome level of distinctiveness had been demonstrated by Utilities. [105] In addition to Janus, the Registrar expressly relied on Merchant Commercial, Dex Resources, Paws Pet Food and ActionPlumbing in coming to her decision that similarity and confusion had been demonstrated.

I briefly examine the analysis undertaken byeach of these Courts in considering the degree of similarity between the parties’ names. [106] In Dex Resources Ltd v Alberta (Registrar of Corporation) (1992), (AB KB), 126 AR 390 (ABQB) thisCourt found that the distinctive elements between the two names (“Dex Resources Ltd.” and “Dexx Energy Corporation”) was identical.It continued on to find, at para 26 that: The fact that the descriptive and legal elements of the two names differ is not significant. The terms "Resources" and "Energy" indicatesimilar business objects.

Corporations are often referred to by their distinctive and descriptive elements only and in this case the terms"Dex Resources" and "Dexx Energy" are so similar that an interested party is likely to mistake one for the other. [107] In examining the factors listed in s 15 [then s 7.72] of the Regulation as a whole, the Court found that a direction requesting aname change was appropriate. [108] In Merchant, the Court noted that the predominate and emphasized word in each name (‘Merchant Commercial Real EstateServices Inc.’ and ‘Merchant Realty Ltd.’) was ‘Merchant’.

Similarly, the Court in Paws Pet Food stressed that the applicant store wasparticularly identified by the term ‘Paws’. A name change was required in both instances. [109] Lastly, in Action Plumbing the majority found that the names ‘Action Plumbing’ and ‘Action Auger Drain Cleaning’ weresimilar, holding that the word ‘action’ was non-descriptive and merely an indication of a speedy type of service. The descriptive wordsfollowing each name were dissimilar, although arguably drain cleaning might comprise a specific aspect of plumbing.

Similar to PawsPet Food, and Merchant, the Court in Action Plumbing found that there was evidence that the impugned name was confusing ormisleading. [110] A review of the Registrar’s reasons satisfies me that she was alive to the need to examine the names of each party as a whole, aswell as to pay attention to the dominant features of both names. I note that she mentions Water’s argument that the name as a whole beanalysed twice in her reasons.

Indeed, while she used abbreviated forms of each corporate name throughout her reasons, when discussingthe similarity between the visual and auditory qualities between each corporate name, she refers to the name as a whole (at the bottom ofpage 5).

This strongly suggests that she did not target her focus singularly on the term(s) ‘Aquatera/Aqua Terra’, but rather undertook acomparative analysis of the corporate names in their entirety. [111] Again, it would have been of assistance to both the reviewing court and to the parties if the Registrar had actually articulatedwhich approach she used in assessing similarity. However, on reviewing her reasons as a whole and bearing in mind the evidence andargument before her on the record, I am unable to say that she either adopted or applied an incorrect legal analysis.

It appears that sheexamined the whole of each corporate name, while noting that the terms ‘Aqua Terra’ and ‘Aquatera’ were phonetically identical andvisually similar. This is the approach followed in many of the cases which predate Masterpiece, and upon which the Registrar expresslyrelied. [112] Of note, the inclusion of entities other than customers or potential customers in the definition of “someone who has an interest”under s4(5)(

b) of the Regulation greatly reduces the persuasiveness of Water’s argument that because its customers consist of asophisticated few, less emphasis should be placed the auditory similarities between the two corporate names. [113] Finally, although referred to when discussing another factor, her definition of the term ‘utility’ as encompassing “a service (suchas a supply of electricity or water) that is provided to the public...” is seemingly indicative of her recognition of some degree of similarityin the remaining descriptive elements of each name (that is, there is at least some similar connotation between the terms ‘water’ and‘utility’, with water management falling within the range of what a utility service offers).

This suggestion was also put in front of the

Registrar during submissions. (

f) the geographic area in Alberta in which the name is likely to be used. [114] The final factor for consideration under s 15 of the Regulation is the area is which the name is used. Utilities operates largely inthe Peace River Country Region with its registered and head office in Grande Prairie. [115] Water operates in Alberta, Saskatchewan, British Columbia, North Dakota and Texas, with its head office in Red Deer. It closedits Grande Prairie office in 2015.

It appears to have two facilities which may overlap with Utilities in geographic area in which the namesare used. [116] Again, while the Registrar did not comment expressly on this issue, the evidence established an intersection in the area in whichthe two companies conduct business. The Registrar noted Water’s confirmation of this point. Given her ultimate finding, it is reasonableto infer that she found the existence of such an overlap favourable to Utilities’ position.

Issue of undue hardship [117] Finally, Water argues that the Registrar erred in failing to take into account the hardship it would suffer if required to change itsname. Water submits that the factors enumerated under s 15 of the Regulation are not exhaustive, and that the hardship caused byrequiring a business to change its name is a relevant consideration. [118] Water had been in business for approximately one and a half years at the time of the Registrar’s decision. It outlined theresources it had expended promoting its new name and provided evidence of the costs associated with a name change.

It relies on ReMenzies-Gibson Ltd, (ON SC), [1955] 1 DLR (2d) 187 (Ont HCJ) at para 7, and Bell at para 37 as authority for theproposition that such costs are a relevant consideration. [119] Utilities stressed that it raised the issue of name confusion shortly after the incidents of confusion began occurring, includingissuing a cease and desist letter, and commencing trade-mark litigation in Federal Court.

It took the position before the Registrar thatWater therefore continued using its name knowing there was a risk of a legal remedy being pursued, rendering Water’s argument as tohardship less persuasive. [120] Water argues that because the Registrar failed to address these criteria she could not possibly have turned her mind to them. Idisagree. The law is clear that “administrative tribunals do not have to consider and comment upon every issue raised by the parties intheir reasons”: Construction Labour Relations Assn (Alberta) v Driver Iron Inc, 2012 SCC 65 at para 3; Newfoundland Nurses at para16.

Rather, reviewing courts are to assess reasonableness more holistically. [121] While the Registrar did not address this point, her reasons demonstrate her belief that comparatively, Utilities had taken greatersteps in establishing its name and goodwill (see especially pages three and four).

The logical implication of her comparative analysis isthat the hardship suffered by Water in having to change its name would be less than that suffered by Utilities, in having its marketingmeasures rendered less effectual due to confusion. [122] Again, the overarching intent of the legislative provisions is to ensure the protection of the public, as opposed to remedying anyhardship or inconvenience suffered by the parties. The Registrar was aware of this focus (stating the same at page 2) and her decision notto expressly address the hardship factor does not render her decision unreasonable.

Conclusion on the s 15 factors [123] The factors listed in s 15 of the Regulation are meant to be considered in assisting the Registrar in her determination as towhether the impugned name contravenes the Act or the Regulation. It is clear that the Registrar concluded that the two names wereconfusingly similar. A reasonable inference to be drawn from this conclusion is that she found the s 15 factors favoured Utilities’position.

A review of the record shows that the evidence and the authorities put before the Registrar could support such a finding on eachfactor. [124] Ultimately, the mere fact that corporate names share a similar or identical word is not determinative of the issue. Rather thefocus on cases of this nature is whether it is reasonable to find that persons interested in dealing with one business would instead dealwith another similarly-named business, having regard to all of the factors enumerated in s 15 of the Regulation.

A review of these factorsin their entirety assists in informing on whether a name is similar in the manner described in s 4(5) of the Regulation. It also assists indetermining whether a similar name is confusing or misleading under s 12(1)(c). A review of the Registrar’s decision as a wholeindicates that she must have concluded that the s 15 factors supported the position taken by Utilities.

Procedural fairness [125] Water’s final ground for appeal is that the process followed by the Registrar was procedurally flawed. [126] The Registrar entertained submissions by Utilities, followed by a reply by Water, and response/rebuttal by Utilities. The Officeof the Registrar refused receipt of Water’s surrebuttal submissions, stating that in the interest of timeliness and finality, each party wasrestricted to one rebuttal, after which time submissions were deemed to be closed. Water asserts that the Registrar’s failure to consider itssurrebuttal submissions was a breach of procedural fairness.

Neither the Act nor the Regulation dictate procedure in such matters.

[ 127 ] When assessing procedural fairness, one must examine the scope of the tribunal's duty in the particular circumstances of the case. As argued by Water, insofar as a standard of review can be said to apply, it is correctness: Edmonton Police Assn v Edmonton (City) , 2007 ABCA at paras 3-4. See also Calgary (City) v Renfrew Chrysler Inc , 2017 ABQB 197 at para 20 .

While Utilities acknowledges the above, it asserts that some deference is owed to a tribunal concerning an exercise of its discretion on procedural issues: Halifax (Reginal Municipality) v 3230813 Nova Scotia Ltd , 2017 NSCA 72 at para 18 . [ 128 ] In its brief, Water took the position that Utilities’ reply submissions raised new evidence respecting the application of the Trade-marks Act and the distinctiveness of the corporate names, as well as new evidence regarding Utilities’ proposed business activities informing the nature of its business or trade.

Certain evidence as to Utilities’ proposed business activities which was improperly included in Utilities’ reply (namely the Waterstone Energy Services Inc. evidence) was expressly rejected by the Registrar. [ 129 ] During oral argument before this Court, Water made it clear that it was focusing on the issue of whether Utilities was advocating for a new test pursuant to the Trade-marks Act for the first time in rebuttal, to which it was provided no opportunity to respond. [ 130 ] While it is clear that Utilities expressly advocates adopting the test in Masterpiece for the first time in its reply brief, it takes the position that its rebuttal submissions addressing the applicability of the Trade-mark Act were required to address what it saw as an error in legal reasoning on the part of Water – namely, that Water acknowledged the applicability of the Trade-mark Act , but then failed to adopt the corresponding test for confusion.

Utilities asserts that this constitutes proper rebuttal material, and that given Water’s submissions on the applicability of trade-mark law, Water would have been aware of the test espoused in Masterpiece , even absent Utilities’ rebuttal argument on this point. [ 131 ] Water relies on Treleaven v College of Teachers (British Columbia) , 2000 BCSC 1160 (“Treleaven”)- a disciplinary case wherein a teacher was found to have engaged in a non-professional relationship with a student - for the proposition that the rules of natural justice include the right of reply to adverse submissions.

Treleaven is distinguishable on the facts. In that case, the aggrieved party (the teacher) was not provided with an opportunity to respond to additional submissions made by the College of Teachers as to the presumption of publication of a

summary of the case and the name of the teacher, as well as fact-based submissions addressing the appropriateness of publication including whether there indeed had been a request from the student that the teacher not be named. Without receiving a reply from the teacher on this point, the Council published the

summary including the teacher’s name. It was clear that the Council considered and relied on the submissions received by the College. [ 132 ] In the case at bar, the Registrar does not make reference to the either the Masterpiece decision or the Trade-marks Act in discussing the appropriate approach to be taken in conducting an analysis of the degree of similarity between two corporate names. Indeed, her approach appears to be consistent with the authorities upon which Utilities relied on in its initial submissions, which predate Masterpiece .

Moreover, Water’s argument that the names must be analyzed utilizing a side-by-side comparison was clearly appreciated by the Registrar. Water has not established any prejudice was suffered by the failure to have its surrebuttal submissions received. As no unfairness was demonstrated, appeal is therefore denied on this ground. Conclusion [ 133 ] The Registrar made two key findings in her reasons.

These were first, that the class of persons to be considered included more than just customers and potential customers, and second, that actual confusion had been established amongst this more extensive spectrum of relevant persons. Evidence of actual confusion is of course a relevant factor in determining whether a name is prohibited under s 12(1)(

c) of the Act . [ 134 ] While Water criticizes the Registrar for not making a stand-along finding of similarity between the two names, her reasons as a whole indicate that her finding of confusing similarity necessarily includes a finding of similarity.

A review of the evidence and authorities before the Registrar supports a finding that her conclusion as to similarity (at page six of her reasons) was one of the possible, reasonable, conclusions available. [ 135 ] While the Registrar’s reasons leave much to be desired in many respects, at the end of the day, she showed that she was alive to the questions at issue between the parties and came to a result that fell within the range of possible outcomes on the evidence.

Ultimately, she was not unreasonable in directing a name change as there was evidence that the use of Water’s name had resulted in confusion in light of its similarity to Utilities’ name. The Registrar was clear in her conclusion on this point and where her analysis was lacking, the record allowed this Court to supplement her reasons in a manner consistent with her findings. [ 136 ] That this Court may have determined the matter differently if heard at first instance is of no import.

Rather, the substantial record before the Registrar provided an adequate basis upon which to decide the matter in the manner in which she did. The appeal is therefore dismissed. Costs [ 137 ] Costs as between the parties may be spoken to within 30 days of the date of these reasons. Dated at the City of Calgary, Alberta this 23 rd day of November, 2018.

C.S. Brooker J.C.Q.B.A. Appearances: Nicholas McHaffie/ David M. Price for the Applicant Christopher Zelyas for the Respondent