Federal Court Rejects Leave to File New Trademark Evidence

OUTCOME: Dismissed

Date: 20260619 Docket: T-2107-25 Citation: 2026 FC 843 Toronto, Ontario, June 19, 2026 PRESENT: The [NAME]: [APPELLANT] Applicant and [RESPONDENT] Respondent

REASONS AND

ORDER [ 1 ] This is a motion for leave to adduce new evidence pursuant to subsection 56(5) of the Trademarks Act , RSC 1985, c T-13 [TMA]. The underlying application is an appeal from a decision [Decision] of the [NAME] [Registrar] that expunged the Applicant’s GAMECHANGERZ trademark [[NAME]] for failing to provide evidence of use. The Applicant asserts it did not receive the Section 45 Notice [Notice] and if the Notice was received, it must have been misplaced. However, the evidence indicates otherwise. [ 2 ] For the reasons set out below, it is my view that it is not in the interests of justice to grant leave to file the proposed new evidence considering all relevant factors applicable in the circumstances of this case, including significant concerns with critical aspects of the evidence that weigh against the relief sought.

I. Background [ 3 ] The Applicant, [APPELLANT] [COMPANY] [[NAME]], is the owner of the [NAME], which was registered on September 8, 2021 as Trademark Registration No. TMA1108935 in association with the following goods and services [Registration]: Goods 9(1) Electronic publications, namely books, handbooks, newsletters, brochures, pamphlets, flyers, posters and advertising signs. 14(2) Promotional items, namely, key chains. 16(3) Printed publications, namely, books, handbooks, newsletters, brochures, pamphlets, flyers, stickers, bumper stickers, greeting cards, pencils, pens, posters and advertising signs of paper and advertising signs of cardboard. 21(4) Promotion items, namely, sport water bottles, coffee mugs. 25(5) Promotion items, namely, hats, casual clothing. 26(6) Promotion items, namely, novelty buttons. 28(7) Promotion items, namely, playing cards, party balloons. Services 38(1) Broadcasting of entertainment global television program focusing on sports, handicapping, daily fantasy, poker and esports for broadcast on television, mobile phones, mobile devices, websites and all digital platforms. 41(2) Production of entertainment global television program focusing on sports, handicapping, daily fantasy, poker and esports for broadcast on television, mobile phones, mobile devices, websites and all digital platforms. [ 4 ] On November 25, 2024, at the request of the Respondent, [RESPONDENT] [COMPANY], the Registrar issued the Notice pursuant to subsection 45(1) of the TMA. The Notice required the Applicant to furnish evidence within three months of the date of the Notice ( i.e ., by February 25, 2025) to demonstrate the [NAME] was used in Canada in association with its registered goods and services during the three-year period from November 25, 2021 to November 25, 2024 [Relevant Period]. [ 5 ] The Applicant did not file any evidence by the deadline. As such, the Registrar issued the Decision expunging the Registration for the [NAME] on April 15, 2025. [ 6 ] A Notice of Application appealing the Decision was filed on June 13, 2025. In the Notice of Application, the Applicant stated that it did not receive the Notice and requested any correspondence or documents not already in its possession which showed that the Notice was sent pursuant to Rule 317 of the Federal Courts Rules , SOR/98-106 [ Rules ]. [ 7 ] On June 30, 2025, the Applicant received the Certified Tribunal Record [CTR] from the [NAME] [[NAME]]. The CTR included the Notice but did not include any documents showing that the Notice was sent or received. [ 8 ] On December 22, 2025, the Respondent submitted its own request to [NAME] for documents pursuant to Rule 317 of the Rules that were not in the Respondent’s possession that demonstrated inter alia the Notice was sent by the Registrar and delivered to the Applicant. [ 9 ] On January 5, 2026, the Applicant served and filed its motion record for the herein motion, including the following three affidavits: a) An affidavit affirmed December 31, 2025, from [NAME] [NAME] [[NAME]], who is the sole director of [NAME] [First [NAME]] – The First [NAME] outlines [NAME]’s filing and mail receipt practices, including around the time of the Notice, and the nature of her communications with [NAME] relating to the [NAME]. In the affidavit, [NAME] states that she did not receive the Notice and that she only became aware of the expungement of the [NAME] when she received the Decision. She outlines the steps that she took with [NAME] after receiving the Decision and before the appeal. b) An affidavit affirmed December 31, 2025, from [COUNSEL], a trademark clerk employed by counsel [NAME] [[NAME]] – The [COUNSEL] attaches the Registration for the [NAME] as retrieved from the [NAME] website, the Order in Council relating to the recent amendment to subsection 56(5) of the TMA, and an excerpt from the [NAME] website relating to “Practice in section 45 proceedings” . c) An unsworn affidavit from [NAME] [[NAME]], [NAME]’s son, who is described as the President & CEO of [NAME], with proposed evidence allegedly demonstrating use of the [NAME]. [ 10 ] On January 15, 2026, [NAME] produced an updated CTR containing additional documents, including a [NAME] proof of delivery [POD] form relating to the delivery of the Notice by courier to the Applicant’s address (which is also [NAME]’s home address) on November 28, 2024. [ 11 ] Shortly thereafter, [NAME] produced two documents to the Applicant: [redacted] b) A [NAME] for the Letter, indicating it was picked up and signed for by “[NAME]” . [ 12 ] On January 26, 2026, the Court granted the Applicant leave to serve and file a supplemental motion record to address the updated CTR and the new documents. [ 13 ] The supplemental motion record included an additional affidavit from [NAME] [[NAME]], discussing her activities and recollections regarding the day the Notice was delivered, the [NAME] for delivery of the Notice, and her understanding of the Letter. A second affidavit from [NAME] [[NAME]] was also provided, discussing his follow-up communications with [NAME] relating to the Letter. [ 14 ] The Respondent filed their responding motion record on March 10, 2026, which included two affidavits: the affidavit of [COUNSEL], a legal assistant from counsel for [NAME] [[NAME]] and an affidavit from [NAME], a [NAME] [[NAME]]. The [NAME] attaches the Letter and the [NAME] relating to the Letter and the Notice, additional documents retrieved from [NAME] and the [NAME] relating to the Applicant’s trademark filings and other filings, and several webpages providing general information relating to section 45 proceedings. The [NAME] describes investigations made at the restaurant where [NAME] allegedly ate on the day the Notice was delivered. [ 15 ] [NAME] was cross-examined on each of her affidavits and [NAME] was cross-examined on the [NAME]. The Respondent’s affiants were not cross-examined on their evidence. [ 16 ] After the cross-examinations, the Applicant filed a second motion under Rule 75 of the Rules , requesting leave to amend [NAME]’s proposed affidavit relating to the alleged use of the [NAME]. The Applicant argues that the requested amendments are necessary to correct certain facts relating to [NAME]’s “role and title with [NAME]” and “the corporation that was receiving payment [NAME]’s performance of services on its Discord Page” . The Applicant argues that the need for these corrections only became clear after [NAME]’s cross-examination transcript was received. [ 17 ] The Respondent opposes the request. They assert that the proposed amendments are prejudicial as they seek to add impermissible reply evidence and would still leave the Court with misleading proposed evidence. The Respondent argues that the proposed amendments do not assist the Court in determining the true substance of the leave motion. [ 18 ] As set out further below, I consider the nature of the amendments to be relevant to the reliability and credibility of the proposed evidence. However, in my view the request for amendment should only be dealt with if I allow the leave request and new evidence from [NAME] to be filed. Otherwise, it would improperly change the record before me on leave.

II. Should Leave under Subsection 56(5) of the TMA be Granted? [ 19 ] The primary issue before the Court on this motion is whether leave should be granted to allow the affidavit of [NAME] to be sworn and filed as amended or otherwise. [ 20 ] The test for leave under subsection 56(5) of the TMA was recently considered by my colleague, Justice Nicholas McHaffie, in [COMPANY] v [COMPANY] , 2026 FC 48 [ [NAME] ]. As set out at paragraphs 29 and 30 of [NAME] , the determination of leave “is ultimately directed at the interests of justice and considers all relevant factors applicable in the circumstances” , including: (a) the relevance, credibility, and admissibility of the evidence; (b) the materiality of the evidence; (c) the circumstances surrounding the delay in filing the evidence; and (d) whether granting leave would cause prejudice to the opposing party. [ 21 ] The Applicant asserts that all factors identified in [NAME] have been met. It argues that the evidence was not filed in response to the Notice because the Notice was either not received or was inadvertently misplaced. The Applicant asserts that the proposed [NAME] establishes use of the [NAME] by [NAME] and therefore denying leave would run contrary to the purpose of section 45 of the TMA, which is focussed on “removing deadwood” from the Register: [COMPANY] v [NAME] et al , 1985 CanLII 6472 (FC) at 215. [ 22 ] The Respondent contends that it is not in the interests of justice to grant leave because the Applicant comes to the Court with unclean hands. The Respondent asserts that the Applicant has misled the Court as to the events relating to receipt of the Notice and in its evidence, which raises serious credibility concerns, is contrary to the administration of justice, and is highly prejudicial to the Respondent. The Respondent also raises a concern regarding the reliability of the proposed new evidence in view of the facts revealed on cross-examination that have exposed inaccuracies with that evidence. A. The First Two Leave Factors [ 23 ] In my view, the proposed evidence satisfies the requirements of relevance and materiality. As noted by Justice McHaffie, while the same principles of materiality ( i.e. , whether the evidence is sufficiently substantial and significant that it could have materially affected the Registrar’s findings) remain relevant under the new subsection 56(5) of the TMA, determining leave is a distinct exercise from determining the merits of an appeal. At the leave stage, the question remains “ whether the new evidence could have a bearing on a finding of the Registrar”: [NAME] at para 29. As stated by Justice McHaffie, “[t]his element parallels the fourth criteria of the [NAME] test [and] similarly parallels the requirement that evidence ‘will assist the Court’, a factor considered in exercising the Court’s discretion to grant leave to file additional evidence pursuant to Rule 312 of the Federal Courts Rules ” : [NAME] at para 29. The proposed [NAME] is relevant as it relates to use of the [NAME], which was the only issue before the Registrar. Further, as the Registrar did not have any evidence of use, it is also material as it could have affected the Registrar’s Decision. [ 24 ] However, like the Respondent, I am concerned about the reliability and credibility of the proposed evidence. The Applicant asserts that the proposed evidence is reliable and credible because [NAME] is the “President, CEO, and Founder of [APPELLANT[NAME]” and would be knowledgeable about the information in his affidavit. In his proposed affidavit on the leave motion, [NAME] states that he has “held this position since January 22, 2013” . However, the Applicant now admits that the proposed evidence includes some inaccuracies that relate to both [APPELLANT] role and affiliation with the Applicant, and the evidence describing how sales are made. This includes how customers pay for services and the entities involved in the customer transactions relating to payment for services offered during the Relevant Period. [ 25 ] The Applicant requests amendments to the evidence that it asserts would correct these inaccuracies. The amendments include a proposal to amend the description of [NAME] role with the company to the following: I have acted in the role of president and CEO of [APPELLANT[NAME] since at least as early as January, 2018, and was significantly involved in the operations of [APPELLANT[NAME] since January 22, 2013. [ 26 ] The Respondent asserts that even with this amendment, the description of [NAME] role and affiliation with [NAME] remains unreliable as it is inconsistent with other descriptions of [NAME] role that appear on his [NAME] profile and in evidence filed on the Rule 75 motion which included affidavits from bankruptcy proceedings in Alberta. The Respondent attaches a copy of [RESPONDENT] [NAME] page which was produced and discussed during his cross-examination. The profile suggests [NAME] was not with [NAME] at all from 2013 to 2019, and that he has not been the President or CEO of [NAME] since at least 2024. Likewise, the bankruptcy affidavits state that [NAME] understood he was not eligible to serve as an officer or director of any company while he was bankrupt. As he was allegedly declared bankrupt in 2013 and not discharged until 2019, the Respondent argues he could be neither President nor CEO of [NAME] as of either January 2013 or January 2018. [ 27 ] While the alleged inaccuracies in [NAME] role appear to relate to the positions [NAME] held outside the Relevant Period, the affiliation of [NAME] with [NAME] is nonetheless directly relevant to his ability to speak to the activities of the company. Thus, it affects the overall reliability and credibility of the evidence. B. Remaining Leave Factors and the Interests of Justice [ 28 ] As noted earlier, the outstanding issue for the Court is whether the interests of justice would be served overall by allowing the proposed evidence of use to be filed. This involves balancing the relevance and materiality of the evidence with my concerns on reliability and credibility, while considering all the surrounding circumstances, including the reason for the delay in providing the evidence and the alleged prejudice to the Respondent. [ 29 ] Contrary to the assertions made by the Applicant, I do not agree that there is a distinction between the application of these leave factors to an appeal of an opposition proceeding as compared to an appeal of a section 45 proceeding. Indeed, no distinction was made by Parliament when the amendment to subsection 56(5) of the TMA was introduced and no distinction was made by Justice McHaffie when he set out the test in [NAME] . [NAME] was an appeal of an opposition proceeding, the same factors identified by Justice McHaffie in [NAME] have been applied in an appeal of a proceeding under section 45 of the TMA: [COMPANY] v [COMPANY] , 2026 FC 329 [ [NAME] ]; [COMPANY] v [COMPANY] , 2026 FC 549 [ [NAME] ]. [ 30 ] The Applicant emphasizes that the underlying purpose of section 45 proceedings is to remove those marks from the Register that have truly fallen into disuse. As such, the proceeding is intended to provide the registered owner an opportunity to show, if they can, that the [NAME] in question is in use or if not, to explain why: [NAME] v Canada ([NAME]) , 1991 CanLII 14352 (FCA) [ [NAME] ] at 412. While I do not dispute these objectives, nor the low threshold of evidence required to maintain a registration under section 45 of the TMA ( [COMPANY] v [NAME] , 2012 FCA 131 at para 8; [COMPANY] v [NAME], [COMPANY] , 2019 FCA 48 at para 10), I do not agree that these objectives negate the other factors identified in [NAME] . The requirement that leave be granted before new evidence is filed necessitates that the trademark owner explain why the overall interests of justice are served by admitting the new evidence. Thus, although materiality and probative value are relevant, they are no longer the only requirements. [ 31 ] Further, as submitted by the Applicant, I agree that a section 45 proceeding is not an inter partes proceeding ( [NAME] at 412). However, it is nonetheless initiated at the request of a third party who is entitled to file responsive arguments and to make oral submissions, which are considered by the Registrar when determining whether the [NAME] should be expunged. In this case, the third party Respondent is an interested party who has expressed prejudice if the new evidence is permitted on an appeal. In my view, this prejudice to the Respondent remains a relevant factor. [ 32 ] Like the present case, in [NAME] and [NAME] the respective applicants sought to introduce new evidence in a section 45 proceeding where they did not file evidence in response to the section 45 notice. In [NAME] , the applicant asserted that they did not receive the notice (para 21). In [APPELLANT] , the applicant acknowledged that they received the notice but admitted to making an error in docketing that resulted in missing the deadline to file evidence (paras 5-6). However, in [NAME] leave was not contested (para 22) and in [RESPONDENT] the respondent took no position on the leave request, nor on the proceeding as a whole (para 22). In those cases, I found that the materiality and relevance of the evidence bore greater weight and that the circumstances around the delay were less relevant, particularly as there was no argument of prejudice. However, I noted in [NAME] that in another case the surrounding circumstances could form a basis for denying leave, particularly where the explanation given for the delay was contested and prejudice was asserted: [NAME] at para 22; see also [NAME] at para 29. [ 33 ] It is the overall interests of justice that governs. Here, the Respondent emphasizes that the Applicant’s conduct does not justify granting leave. A careful review of the evidence, in my view, supports this finding. [ 34 ] Here, [NAME] filed lengthy evidence claiming that she did not receive, and was not aware of, the Notice. However, I find this assertion is simply not credible. The unequivocal evidence from the CTR demonstrates that the Notice was delivered on November 28, 2024 by [NAME] to the Applicant’s address where [NAME] resides. The evidence demonstrates that [NAME] signed for the envelope that contained the Notice. Despite repeated attempts to deny this, there can be no doubt that the Notice was delivered to [NAME] and that she received it. [ 35 ] The evidence indicates that after the Notice issued, the Applicant also received the Letter from [NAME] referencing the Notice and indicating that evidence needed to be filed or the [NAME] would be expunged. The Letter stated: We are writing in respect of your above-referenced registration for the trademark GAMECHANGERZ (word [NAME]), in respect of which, as you are no doubt aware, the Registrar has issued a Section 45 Notice, at our client’s request. As a result, you are now required to provide evidence of use of the trademark in Canada in association with all the goods and services listed in the registration during the relevant period, failure of which will result in the cancellation of the registration (“ Cancellation Proceeding ”). [ 36 ] The Letter made reference to other interactions between the parties in the United States in which the Applicant allegedly withdrew their US application and changed its business name. The Letter asked whether the Applicant was similarly prepared to voluntarily withdraw the Canadian application instead of proceeding with the “Cancellation Proceeding” . [ 37 ] The Letter was delivered by [NAME] and was picked up, and signed for, by [NAME] on January 21, 2025. There was no mention of the Letter in the First [NAME]. The Letter was only addressed in the [NAME] after it was produced by the Respondent. [ 38 ] In the [NAME], [NAME] suggests that she did not include the Letter in her first affidavit because she did not understand the Letter or its implications, she did not remember it at the time of her affidavit, and she did not recall the details of the Letter. However, [NAME] later acknowledged discussing the Letter with [NAME], including reading it to him verbatim on the phone, and encouraging [NAME] to develop a strategy for response. [NAME] created a separate binder in her filing system for the Decision, which included the Letter as its first tab. [ 39 ] In the [NAME], [NAME] also acknowledged discussing the Letter with [NAME] and following up with [NAME] regarding the Letter. On cross-examination of [NAME], he admitted that before February 11, 2025 he was aware that the [NAME] could be cancelled as a result of the section 45 proceedings, and that the Applicant needed to “take action” and to also have some discussions with the Respondent. [ 40 ] I accept from this evidence that the Applicant was aware of the Notice and the possibility that the [NAME] could be expunged if the Notice was not addressed but nonetheless did not file any evidence. [ 41 ] [APPELLANT] asserts this was because he had discussed the Applicant’s use of the [NAME] with [NAME]. He claims that he thought these discussions were sufficient to establish use of the [NAME]. I do not accept this explanation. The significant back and forth between [NAME] and [COUNSEL] regarding the Letter and the section 45 proceedings, in my view, would have triggered at least some appreciation for the Notice and its requirements. [ 42 ] Further, I do not accept that the Applicant was without any trademark knowledge. As highlighted by the Respondent, [NAME]’s attempt to minimize her understanding of trademark matters is undermined by her years of direct experience filing trademark applications, responding to office actions, addressing applications and amended applications with the Registrar, and corresponding with [NAME]. [ 43 ] In any event, the Applicant cannot hide behind their own alleged ignorance of the law to support their lack of activity: [COMPANY] v [RESPONDENT] , 2014 FC 559 at para 70. [ 44 ] The Respondent asserts that the level of diligence expected here should be paralleled to that in the patent context. It refers to recent decisions of this Court and the Federal Court of Appeal which emphasize the high threshold required of patent owners as to their due diligence requirements to maintain their patent rights: [NAME] v Canada (Attorney General) , 2024 FC 259, aff’d 2025 FCA 28; Canada (Attorney General) v [COMPANY] , 2025 FCA 156. [ 45 ] However, as acknowledged by the Respondent, the due care standard originates directly from sections 46, 46.2 and 73 of the Patent Act, RSC 1985, c P-4. Admittedly, there is no similar standard imposed under the TMA as it relates to section 45 proceedings. [ 46 ] In [NAME] , Justice McHaffie notes that under the test for adducing new evidence on appeal set out in [NAME] v The Queen , 1979 CanLII 8 (SCC) [ [NAME] ], evidence will only be admitted if it could not have been obtained for trial by the exercise of due diligence: [NAME] at para 29, citing [NAME] v [NAME] , 2022 SCC 22 at paras 29(i), 36; see also [COMPANY] v [NAME] , 2014 FCA 88 at para 6(a). He states the principle that litigants must “put their best foot forward when first called upon to do so” is also important in trademark proceedings, but that a more flexible approach is warranted, compared to the circumstances where the [NAME] test applies. While this flexibility may lessen the threshold required from one of due diligence, an applicant must nonetheless provide a reasonable explanation for the delay in filing their evidence. [ 47 ] In this case, as already stated, I do not accept [NAME]’s evidence that the Applicant did not receive the Notice. Further, the evidence establishes that in any event, the Applicant was aware of the Notice through the Letter. The Applicant has not provided a reasonable explanation as to why they did not file evidence before the Registrar. Even if the Applicant did not fully understand the Notice, the Letter and the discussion with [NAME] provided further information to the Applicant that there were legal proceedings that could result in the cancellation of the registration of the [NAME]. The Applicant’s attempts to explain why it failed it take any steps to respond to the Notice or to inform itself further are not reasonable and do not exemplify reasonable conduct in the circumstances. [ 48 ] The Respondent asserts that the Court should not grant discretionary relief to the Applicant because it comes to the Court with unclean hands, having attempted to mislead the Court by misrepresenting facts relating to its awareness of the Notice and its obligations. It argues that this runs contrary to the administration of justice: [NAME] v [COMPANY] , 2024 SCC 32 at paras 93–97; [NAME] v [COMPANY] , 2017 ONSC 5391 at para 63; [NAME] v 2426483 [COMPANY] , 2020 ONSC 3368 at paras 23–29. I agree. [ 49 ] The shifting evidence of [NAME] and [NAME] relating to the critical circumstances around the Notice and the Applicant’s response, along with the reliability concerns relating to the proposed new evidence raise significant concerns, and weigh against the Court exercising its discretion to allow the evidence to be filed. Indeed, in my view, it would not be in the interests of justice to do so. [ 50 ] For all these reasons, the Applicant’s request for leave is dismissed. In view of this finding, the Applicant’s request to amend their proposed new evidence is similarly denied.

III. Conclusion [ 51 ] As the Respondent has been successful on the motion, it shall be entitled to costs. [ 52 ] The parties provided brief submissions on costs at the conclusion of the hearing. However, in light of the outcome of this motion, and in view of the indication that some offers to settle were exchanged, I will allow further written submissions to exceptionally be provided.

ORDER in T-2107-25 THIS COURT ORDERS that: The motion is for leave to adduce new evidence is dismissed. The motion under Rule 75 of the Federal Courts Rules is dismissed. Costs are awarded to the Respondent in an amount to be determined upon further written submissions unless otherwise agreed by the parties. The following schedule shall apply: a) The Respondent shall have twenty (20) days from the date of this order to provide up to five (5) pages of written submissions on costs; b) The Applicant shall have twenty (20) days from the date of receipt of the Respondent’s submissions to provide up to five (5) pages of responding written submissions on costs; and c) The Respondent shall have ten (10) days from the date of receipt of the Applicant’s responding submissions, to provide up to two (2) additional pages of written submissions in reply. “[NAME]” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2107-25 STYLE OF CAUSE: [APPELLANT] [COMPANY]. v [RESPONDENT] [COMPANY]. PLACE OF HEARING: HEARD BY VIDEOCONFERENCE DATE OF HEARING: April 27, 2026

REASONS and order: [NAME] J. DATED: JUNE 19, 2026 APPEARANCES : [APPELLANT] [APPELLANT] [NAME] [APPELLANT] S. [APPELLANT].[APPELLANT]. [APPELLANT] For The Respondent SOLICITORS OF RECORD : [NAME] [APPELLANT], [NAME] [NAME] [APPELLANT] and Solicitors Vancouver, British Columbia For The Respondent