In 1459243 Ontario Ltd. v. Eva Gabor International, Ltd., the Federal Court set aside the Registrar’s decision expunging a trademark under section 45 of the Trade-marks Act. The parties agreed that the standard of review was one of correctness, unless new evidence would have materially affected the decision of the Registrar. At issue was whether the new affidavit filed by the Applicant was hearsay and, if admissible, whether the evidence would have affected the Registrar’s decision.
The Applicant’s new affidavit sought to introduce evidence that employees of the company had included promotional flyers bearing the trademark at issue when shipping other goods to customers. On cross-examination the deponent acknowledged he was not personally involved with the flyers. The Federal Court concluded that this evidence met the criteria of reliability and necessity required by the Supreme Court of Canada decision, R. v. Smith, particularly in the context of section 45 proceedings which are intended to be expeditious and straightforward. The Court noted that other cases had accepted the reliability of evidence given by individuals who operate businesses. The evidence was also necessary since requiring evidence from several employees would not be consistent with the summary procedure intended for section 45 proceedings. Read more