Executive Summary: Key Legal and Evidentiary Issues

• Whether Normand Latourelle's affidavit, in whole or in part, should be struck at this preliminary stage governed the entire motion.
• Rule 81 confines affidavits to relevant facts within the deponent's personal knowledge, excluding opinion, argument, and conclusions.
• Pre-bankruptcy dealings between Cavalia and its main secured creditor fall outside this proceeding and belong to parallel Quebec Superior Court litigation.
• Post-bankruptcy offers to acquire the ILLUMI Marks may bear on the marks' value and on the depreciation the trustee alleges.
• Jurisdictional limits separate the Federal Court's trademark mandate from the creditor and insolvency disputes raised in the affidavit.
• Drafting an affidavit from pleadings prepared for other proceedings introduced substantial irrelevant material, with consequences for the party responsible.

Facts of the case

Until it declared bankruptcy on April 25, 2025, Cavalia Inc. was controlled by its founder, Normand Latourelle, and had spent roughly two decades producing shows. Alongside its well-known equestrian productions, Cavalia operated a light-based walkthrough attraction under the name ILLUMI — a course divided into several tableaux featuring light structures and a sound environment. ILLUMI ran in Laval, Quebec across the winters of 2019–20 through 2023–24, and in Mississauga, Ontario until January 2025. The trustee says these events drew hundreds of thousands of visitors and that the ILLUMI Marks gained considerable goodwill through intensive use and continuous promotion.

Raymond Chabot Inc. (RC) acts as trustee in bankruptcy of Cavalia, which owns the ILLUMI Marks, and brought the underlying application. The defendant, 9505-3773 Québec Inc. (9505), was incorporated in December 2023 as a holding company with no operations until mid-2025; its president is Latourelle's son, Mathieu Tardif-Latourelle. From summer 2025, 9505 promoted a light course closely resembling ILLUMI in concept and experience under the mark FESTILUMI, opening it to the public at Montreal's Marché Central in September 2025 and announcing tens of thousands of tickets sold by early October. Latourelle admits he is FESTILUMI's artistic producer and is involved in 9505's advertising and marketing. The underlying suit is an application for a declaratory judgment that 9505 infringed the ILLUMI Marks; RC filed its notice of application on November 14, 2025 and its evidence in December 2025, supported by affidavits from a GardaWorld investigator (Yves Lefebvre), the RC partner responsible for the file (Guillaume Landry), and a Gowling legal technician (Sandra Noe). In response, 9505 filed several affidavits, including one from Latourelle running to 126 paragraphs and 45 exhibits. RC moved to strike much of it — 86 paragraphs and 25 exhibits — arguing it contained irrelevant material, hearsay, non-facts, and matters beyond the Court's jurisdiction. This decision resolves only that motion to strike; the broader dispute also plays out in several Quebec Superior Court proceedings among Latourelle, RC, and Cavalia's principal secured creditors.

Legal framework and provisions at issue

Rule 81 of the Federal Courts Rules, SOR/98-106, requires that affidavits be confined to facts within the deponent's personal knowledge and present those facts without commentary or explanation, so as to help the Court decide the questions before it. The Court may strike an affidavit in whole or in part where it is abusive or contains irrelevant material, opinion, argument, or conclusions. That discretion to strike at a preliminary stage is reserved for exceptional circumstances — where the interests of justice require it, where keeping the affidavit would prejudice a party, or where it would impede the orderly conduct of the hearing. The underlying application turns on the Trademarks Act, RSC 1985, c T-13, particularly sections 6, 7, 19, 20 and 22. The merits judge will need to decide whether FESTILUMI and the ILLUMI Marks are confusing within the meaning of section 6 — assessed from the first impression of a somewhat hurried ordinary consumer holding only an imperfect recollection of the earlier marks — and whether FESTILUMI amounts to passing off, which requires goodwill, public deception through misrepresentation, and actual or potential damage to the plaintiff.

The court's reasoning and analysis

Justice Gagné assessed relevance against the notice of application and concluded that most of the Latourelle affidavit had no bearing on the trademark questions the Court must decide. The pre-bankruptcy history between Cavalia and its main secured creditor, Desjardins, belongs to the Quebec Superior Court and could not affect the application, so paragraphs 17–43 and exhibits NL-9 to NL-15 were struck. The same reasoning applied to how RC intended to liquidate Cavalia's assets and whether it met its obligations (paragraphs 44–92). Within that grouping, however, sat 9505's post-bankruptcy offers to acquire the ILLUMI Marks. 9505 argued these exchanges could rebut RC's position that the alleged infringement depreciated the marks — potentially showing instead that RC's own conduct diminished their value or pointed to abandonment. The Court found that only exhibits NL-28 and NL-29 touched on those questions; the other exchanges (NL-22, NL-23, NL-25, NL-26), though they concerned assets that included the marks, did not reveal the value assigned to them. It accepted that paragraphs 80–88 and exhibits NL-28 and NL-29 might bear on post-bankruptcy use of the marks and their value at the time of the alleged infringement, left that assessment to the merits judge, and struck paragraphs 44–79 and 89–92 along with exhibits NL-16 to NL-27, NL-30 and NL-31.

Turning to a further grouping (paragraphs 28, 29, 58, 59, 91 and 104) said to address the absence of value attributed to the marks, the Court found paragraphs 28–29 (and exhibits NL-12, NL-13) concerned pre-bankruptcy events, while paragraphs 58–59 addressed the realization value of Cavalia's assets generally rather than the ILLUMI Marks specifically. Paragraph 91 concerned an auctioneer's acquisition of certain low-realization-value assets that excluded the intellectual property, and paragraph 104 alleged that RC and Desjardins were multiplying proceedings to harm FESTILUMI — a matter for Cavalia's creditors, the bankruptcy inspectors, and the Quebec Superior Court, not this Court. Those paragraphs and exhibit NL-31 were struck. By contrast, paragraphs 93–101, addressing recent developments such as alleged non-use of the marks, an allegedly unrenewed US CAVALIA registration, and allegedly unrenewed domain names, appeared relevant and were left to the merits judge — except the deactivation of the cavalia.com and illumi.com websites (paragraph 99 and exhibit NL-34), which the Court found unsurprising after bankruptcy and struck. Finally, 9505's counsel asked to rewrite the affidavit for coherence if parts were struck, and acknowledged that pleadings from the Quebec Superior Court proceedings had been used to draft it — which the Court noted explained the volume of irrelevant content. The Court held that 9505 had chosen that approach and would bear the consequences, with the parties proceeding on what remained of the affidavit.

Ruling and outcome

The Court granted the motion in part. It ordered paragraphs 17–79, 89–92, 99 and 104, together with exhibits NL-9 to NL-27, NL-30, NL-31 and NL-34, struck from Latourelle's affidavit dated February 13, 2026, finding them plainly irrelevant to the infringement and passing-off issues and holding that retaining them would impede the hearing and prejudice the trustee. The Court also extended the Rule 308 deadline for cross-examinations on the affidavits and awarded costs to the successful party, Raymond Chabot Inc. in its capacity as trustee in bankruptcy of Cavalia. No dollar figure was set for those costs, and because the decision resolved a motion to strike rather than the merits, no damages or other monetary award were determined.