Executive Summary: Key Legal and Evidentiary Issues

• Central to the motion was whether the amended subsection 56(5) leave requirement under the Trademarks Act applied to an affidavit in a proceeding commenced one day before that amendment took effect.
• At issue was whether the ability to file new evidence "as of right" on appeal is a substantive right capable of vesting, or a purely procedural matter subject to immediate application.
• Horizontal stare decisis framed the analysis, as the Court considered whether it was bound by two recent Federal Court decisions addressing the same question.
• A preliminary evidentiary question arose over whether portions of a corporate representative's affidavit containing legal opinions should be disregarded.
• Determining the precise moment the right vested — the deemed filing of the notice of application rather than the later filing of the evidence itself — proved decisive.
• Costs were sought on a lump-sum basis, including a court reporter's cancellation fee attributed to the moving party's scheduling of its motion.

Facts of the case

Green Gourmand Foods Inc. sought to register the trademark ALLERGY SMART (application No. 1,918,442), filed on September 5, 2018 and advertised on December 15, 2021. The Trademarks Opposition Board, acting for the Registrar of Trademarks, refused the application in a decision dated January 27, 2025. On March 31, 2025, Green Gourmand filed a Notice of Application in the Federal Court under subsection 56(1) of the Trademarks Act, appealing the refusal. In that Notice, it alleged errors by the Registrar and pleaded that the decision would have been different had additional evidence been before it — evidence it intended to file on appeal. One day later, on April 1, 2025, an amendment to subsection 56(5) came into force introducing a leave requirement: new evidence on such appeals could no longer be filed as of right but required leave of the Court. On May 15, 2025, Green Gourmand swore and communicated a second affidavit of Shane Bacher (the New Bacher Affidavit) without seeking leave. Canada Bread Company, Limited, the respondent in the appeal, brought a motion to strike that affidavit, arguing the leave requirement applied and no leave had been obtained.

Statutory provisions at issue

The dispute turned on statutory interpretation rather than any contractual or policy terms, so none were in play. The core provision was subsection 56(5) of the Trademarks Act in its two competing forms: the previous version, under which evidence in addition to that adduced before the Registrar could simply be adduced, and the new version, which requires the Court to grant leave before such additional evidence may be considered. Also relevant were the transitional provision at paragraph 70(1)(d), and sections 43 and 44 of the Interpretation Act, which govern the effect of a repeal and the substitution of a new enactment for a former one. The parties further disputed the operation of Rules 301(f) and 306 of the Federal Courts Rules, which concern when an application is considered commenced and when the underlying evidence may be filed.

The court's reasoning and analysis

Justice Tsimberis first addressed a preliminary evidentiary issue. The affidavit of Alice Lee, Vice President Legal at Canada Bread, was filed in support of the motion but reproduced statutory provisions and offered what amounted to legal opinion; Ms. Lee testified as a witness of fact rather than as a lawyer or expert. Because questions of domestic law fall within the court's own expertise and opinion evidence on them would usurp the court's role, the Court disregarded paragraphs 2 to 7 of the Lee affidavit. On the central question, the Court applied the Supreme Court's framework in R v Archambault, which asks first whether a legislative amendment is purely procedural and, where a vested right may be affected, requires identifying when that right vested. The Court held it was bound by horizontal stare decisis to follow two Federal Court decisions, Yat Sun Food and Big Duck Games, having found that none of the three narrow exceptions in R v Sullivan applied. Following Big Duck Games in particular, the Court concluded that the right to file new evidence without leave is substantive and vested on March 31, 2025, when the Notice of Application was deemed filed — a Notice that pleaded reliance on new evidence and listed "any further affidavit evidence and documentary exhibits" among the materials to be used. Relying on Simpson Strong-Tie, the Court held it did not matter that the New Bacher Affidavit was not named specifically, nor that the evidence itself was filed only after April 1, 2025. The transitional provision at paragraph 70(1)(d) did not assist Canada Bread: the ALLERGY SMART application was advertised on December 15, 2021 (after the June 17, 2019 reference date), so the provision gave no clear legislative intent, and in any event it could not, absent clear language, defeat a right that had already vested before it came into force. The Court added that, even had it not been bound by its colleagues, its own independent analysis would have reached the same result.

Ruling and outcome

The Court dismissed Canada Bread's motion to strike, finding that Green Gourmand's right to file the New Bacher Affidavit as of right had vested on March 31, 2025 and did not require leave. Green Gourmand, as the party resisting the motion, was successful. The Court accepted its lump-sum costs request calculated under Column IV of Tariff B and inclusive of disbursements — which included a $1,017 court reporter cancellation fee — and ordered Canada Bread to pay costs of $12,615.95 forthwith. Canada Bread was also granted an additional two months to conduct its cross-examination of Mr. Bacher on the New Bacher Affidavit. This decision resolved only the motion to strike and costs; the underlying appeal of the Registrar's refusal of the ALLERGY SMART application was not itself decided.