Executive Summary: Key Legal and Evidentiary Issues

• Central to the motion was whether Constellation could file the Mlynczyk Affidavit as new evidence on its trademark appeal under subsection 56(5) of the Trademarks Act.
• Applying the Products Unlimited framework, the Court weighed relevance and admissibility, materiality, the reasons for delay, and prejudice to the opposing party.
• Admissibility turned on whether a key paragraph offered inadmissible opinion evidence from a witness who could only testify to facts.
• Materiality was assessed against fixed "material dates," since much of the proposed sales and promotional evidence post-dated them or lacked precise numbers.
• A related request sought confidential treatment of parts of the affidavit under Rule 151 of the Federal Courts Rules.
• Costs were also contested, with each party proposing a different figure for a fully successful outcome.

Facts of the case

Constellation Brands U.S. Operations, Inc. is the United States–based subsidiary of Constellation Brands, Inc., an international producer and marketer of beer, wine and spirits. In the 1960s its predecessor, Robert Mondavi Winery, acquired the "To Kalon Vineyard," the original vineyard of H.W. Crabb, one of the first vintners in Napa County, California. Constellation adopted Crabb's disused TO KALON trademark along with the marks H.W.C. and HWC (collectively, the Constellation Marks). On December 3, 2018, The Vineyard House, LLC filed two trademark applications — CRABB'S HALTER VALLEY (application no. 1,933,684) and H.W. CRABB (application no. 1,933,686). Constellation opposed both applications on six grounds: non-distinctiveness, deceptive misdescriptiveness, bad faith, non-entitlement to register, no use or proposed use, and non-entitlement to use. Its core objection was that The Vineyard House sought to promote a historical connection to H.W. Crabb and the To Kalon Vineyard that Constellation says does not exist and is its alone to make; the parties' dispute had also been the subject of a trial in the United States. On October 30, 2025, the Trademarks Opposition Board dismissed both oppositions, finding that Constellation had not met its initial evidentiary burden and had not shown that the Constellation Marks had acquired a "significant, substantial" reputation in Canada. Constellation appealed the findings on non-distinctiveness, deceptive misdescriptiveness and non-entitlement to register, and brought this motion for leave to file new evidence — the affidavit of Eugene Mlynczyk, the National Fine Wine Ambassador of Principle Fine Wines within Arterra Wines Canada, Constellation's sole Canadian distribution agent. The Mlynczyk Affidavit was exhibited to an affidavit of Kenneth L. Wilton, a partner at Constellation's U.S. law firm, who explained that it had not been filed earlier because of concerns about disclosing commercially sensitive information without a confidentiality order. The Vineyard House cross-examined Mr. Wilton on April 13, 2026.

Statutory and procedural provisions at issue

The motion was brought under subsection 56(5) of the Trademarks Act, RSC 1985, c T-13, which, in its amended form, now requires a party to obtain leave before adducing additional evidence on an appeal from the Board. The governing test comes from Products Unlimited, Inc v Five Seasons Comfort Limited, 2026 FC 48, which directs the Court to consider whether the interests of justice favour granting leave, weighing all relevant factors: the relevance, credibility and admissibility of the evidence; its materiality; the circumstances surrounding the delay in filing; and any prejudice to the opposing party. Constellation also sought an order under Rule 151 of the Federal Courts Rules sealing portions of paragraphs 15 and 24 and Exhibits C, D and H of the Mlynczyk Affidavit. For that request the Court applied the confidentiality-order requirements from Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, under which the moving party must show clear, non-speculative evidence that the order is necessary to prevent a serious risk of disclosing sensitive commercial information that has never previously been disclosed.

The court's reasoning and analysis

Justice Whyte Nowak first refused the Rule 151 request. Although the Wilton Affidavit confirmed that Constellation treated the redacted sales information at paragraph 24 as commercially sensitive, there was no evidence from Mr. Mlynczyk or any Arterra employee that Arterra — whose business records the information came from — had itself treated it as confidential, and nothing established the confidential nature of the material at paragraph 15 or Exhibits C, D and H. Absent any indication on the face of the documents that the information was to be kept confidential, there was no basis to seal it. Turning to leave, the Court accepted that the Wilton Affidavit adequately explained why Constellation had not earlier filed the sales figures held by Arterra as an unaffiliated third party, but noted that the explanation had expanded during submissions to cover the marketing materials and an asserted unexpected Board finding, with no evidence supporting those added reasons. Because Constellation had filed its original evidence under the former version of subsection 56(5) — when evidence could be filed as of right — and before Products Unlimited established the leave test, the Court declined to treat the unexplained delay as determinative, while observing that this factor still weighed against admitting the marketing evidence. On admissibility, the Court agreed with The Vineyard House that paragraph 28 — Mr. Mlynczyk's belief that Canadian wine enthusiasts are aware of H.W. Crabb and his association with the To Kalon Vineyard — was inadmissible opinion evidence that a fact witness cannot give (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23), which meant the paragraphs setting out his credentials (paragraphs 3–7) and Exhibits A and B were not relevant. On materiality, the Court asked whether the evidence was sufficiently substantial and significant that it could have had a material effect on the Board's decision, emphasizing the gate-keeping purpose of the amended provision, and found that the remaining evidence repeated the deficiencies the Board had already identified. The sales figures for TO KALON VINEYARD CO. wine covered 2021 to 2025 without a yearly breakdown; three of those five years fell after the non-distinctiveness material dates (December 16, 2021 and April 20, 2022) and all five fell after the non-entitlement material date (December 3, 2018), while the LCBO Notice to Purchase dated August 27, 2021 was not evidence of actual sales to Canadian consumers. Evidence of promotion at wine events failed because Mr. Mlynczyk gave no attendance numbers, and evidence about the "To Kalon" certification program — including a "To Kalon On the Road" event held in Montreal and Toronto in October 2019 and said to have drawn "dozens" of attendees — did not establish how many ordinary purchasers, as opposed to sommeliers and trade buyers, were present, with Exhibit D naming only a handful of individuals and using imprecise dates. The media and advertising evidence — a 2025 brand booklet said to have reached "several" Canadians and a 2016 Decanter magazine article — was dated well after the material dates or suffered the same circulation problems the Board had already flagged. The Court therefore held that paragraphs 10–27 and Exhibits C through J were not material. On prejudice, the Court agreed with Constellation that delay is inherent in the oppositions scheme, so prejudice did not factor into the decision.

Ruling and outcome

Weighing the Products Unlimited factors, Justice Whyte Nowak concluded that it was not in the interests of justice to grant Constellation leave to file the Mlynczyk Affidavit, and dismissed both the motion and the related Rule 151 request. The Vineyard House, LLC was the successful party. Although The Vineyard House had sought $10,000 in costs, the Court awarded it $7,100 — the amount Constellation itself had proposed for a fully successful party, calculated using the middle of Column II of Tariff B — plus disbursements in any event of the cause.