Executive Summary: Key Legal and Evidentiary Issues

• TD Bank sought to amend the Joint Statement of Issues mid-trial to substitute a trademark registration (TMA '911 without colour claim) for another (TMA '831 with colour claim for white letters on green background) due to an alleged clerical error.

• The Defendant argued the Plaintiff narrowed its asserted trademarks before trial and that it relied on this narrowing for its litigation strategy and cross-examinations.

• Court applied the Canderel test requiring amendments serve the interests of justice and not cause non-compensable prejudice.

• Plaintiff's error appeared in multiple filed documents from the first day of trial through closing arguments, compounding its significance over time.

• Amendment sought would broaden the Plaintiff's claim after the evidentiary phase concluded, which the Court found procedurally unfair.

• Motion was denied but TD Bank may still rely on its family of 38 TD-formative trademarks, including TMA '911, in its confusion analysis.

Background and parties involved

The Toronto-Dominion Bank brought a trademark infringement action against Thomas John Dyas, operating as TD Benefits and TD Benefit Solutions, alleging violations of the Trademarks Act. The dispute centered on whether the Defendant's use of "TD Benefits" marks infringed TD Bank's registered trademarks, including variations of the TD Shield Design. Trial commenced on October 20, 2025 before the Honourable Madam Justice Tsimberis of the Federal Court.

The clerical error and its discovery

On October 16, 2025, while preparing a draft Joint Statement of Issues, Plaintiff's counsel narrowed the asserted trademarks from six to three registrations to streamline the infringement analysis. During this process, counsel inadvertently deleted the row containing TMA '911 (TD Shield Design without colour claim) instead of TMA '831 (TD Shield Design with colour claim where the letters TD are in white and the background square element is green). This error carried forward into the Plaintiff's Revised Statement of Issues filed on the first day of trial, the infringement analysis chart presented during opening arguments, and ultimately the Joint Statement of Issues filed on October 27, 2025. Counsel discovered the error on the morning of October 29, 2025, while preparing closing arguments, and disclosed it to the Court and Defendant the following day.

Positions of the parties

TD Bank argued the amendment should be allowed because it accorded with the real questions in controversy, the error was inadvertent, and the Defendant had been aware of TMA '911 for over four years. The bank contended there was no logical reason it would have chosen to limit itself to a trademark with a specific colour claim when the Defendant never used green in its allegedly infringing marks. The Defendant objected, asserting it relied on the Plaintiff's narrowing of the issues to form its litigation strategy and conduct cross-examinations. The Defendant argued that prejudice must be presumed given its inability to retroactively change its litigation strategy after the evidentiary phase had closed.

Legal framework applied

The Court applied Rule 75 of the Federal Courts Rules governing amendments and the principles from Canderel, which provide that an amendment should be allowed at any stage for determining real questions in controversy, provided the allowance would not result in injustice to the other party not capable of being compensated by costs and would serve the interests of justice. The Court noted that timeliness, delay to proceedings, the extent to which a position taken by one party has led another to follow a course of action difficult to alter, and whether the amendment facilitates consideration of the true substance of the dispute are all relevant factors. The failure to meet either one of the Canderel criteria may result in the amendment being refused.

The Court's analysis and ruling

Justice Tsimberis found that while the error was inadvertent and the amendment met the threshold requirement of reasonable prospect of success, the interests of justice did not support granting leave to amend. The Court emphasized that the error appeared in multiple documents filed from the trial's outset, compounding its significance over time. The Defendant incorporated the narrowed Schedule "A" into its own Revised Statement of Issues and confirmed on the trial record its agreement with the Plaintiff's characterization of the infringement issue. Allowing the amendment would broaden the Plaintiff's claim after the evidentiary phase concluded, arguably denying the Defendant's right to know the case against it and its right to a full and fair chance to respond at this late stage. The motion to amend was dismissed with costs awarded to the Defendant in the cause.

Outcome and next steps

The Court ordered that TD Bank cannot rely on TMA '911 as one of the three asserted trademarks allegedly infringed but may continue relying on its family of 38 TD-formative marks, including TMA '911, in its confusion analysis. The Plaintiff was ordered to file its Amended Closing Argument by 2 pm on Tuesday, February 17, 2026, with the Defendant to file its Amended Closing Argument, if necessary, by 2 pm on Thursday, February 19, 2026. The trial was ordered to resume on February 25, 2026 at 9:30 am Eastern in Toronto for a duration of 1.5 days. No specific monetary amount was determined at this stage, as the ruling addressed only the procedural motion to amend.