Leave Denied! New Developments in Requests for Leave in Appeals from Trademark Opposition Board Decisions

In our recent article, we discussed the developing approach to requests for leave to adduce new evidence in appeals to the Federal Court from decisions of the Trademarks Opposition Board (the “TMOB”) under new subsection 56(5) of the Trademarks Act (the “Act”). Central to the developing approach is the reasoning of Justice McHaffie in Products Unlimited, Inc. v. Five Seasons Comfort Limited, 2026 FC 48 (CanLII) (“Products Unlimited”), where the Court first considered the new leave requirement and held that the overarching concern is the interests of justice, and set out the factors to consider, including the relevance, credibility and admissibility of the new evidence, its materiality, the reason the evidence was not filed before the TMOB, and any prejudice to the other party if leave was granted.  We concluded that, given the relatively high bar for the granting of leave to introduce new evidence on appeal, parties would be well-advised to “put their best foot forward” before the TMOB.

Since that article, the Federal Court has been regularly required to consider evidentiary leave applications, and several decisions have applied Justice McHaffie’s reasoning and test from Products Unlimited to conclude that it was in the interests of justice to grant leave.  However, two recent decisions of the Federal Court have denied leave, summarised below. 

The first case, Enteractive Media Inc. v. Gamechanger Media Inc., 2026 FC 843, (“Enteractive”) confirms that the approach to leave outlined in Products Unlimited applies equally to non-use expungement proceedings under section 45 of the Act and not only appeals from decisions in opposition proceedings. Trademark owners should therefore put their best foot forward in non-use proceedings and expect the same level of scrutiny from the Court when requesting leave on appeal. 

The appeal in Enteractive was from a TMOB decision to expunge the trademark registration for GAMECHANGERZ due to the registered owner’s failure to show use of the mark within the prescribed period. The registered owner sought to introduce evidence indicating that the notice initiating the proceeding was misplaced (hence no reply), along with evidence showing use of the mark. The Court agreed that the new evidence was material and relevant but was skeptical of the reliability and credibility of the registered owner’s affiants and evidence, which, on the record, suggested dishonesty and a lack of “clean hands”. Ultimately, the Court had significant concerns about the credibility of the owner’s evidence and decided that the interests of justice and prejudice to the other party weighed against granting leave despite the new evidence being relevant and material. 

The second case, Constellation Brands U.S. Operations, Inc. v. The Vineyard House, LLC, 2026 FC 866 (“Constellation Brands”), demonstrates the rigorous analysis undertaken by the Court in considering leave, consistent with its new “gatekeeping function”.  The Court also noted that the purpose of new subsection 56(5) is to promote efficiency and finality in the appeal process.  

Constellation Brands involved an appeal from a TMOB decision in an opposition to applications for CRABB’S HALTER VALLEY and H.W. CRABB for “wines”. The opponent had failed in the first instance to demonstrate that its trademarks had a significant, substantial reputation in Canada, which was necessary to establish a false association between the opponent’s trademarks and the opposed trademarks. The opponent appealed and sought to adduce new evidence to support its opposition grounds and fill gaps in its evidentiary record. The Court considered this new evidence, finding elements of it to be inadmissible opinion evidence, while other parts were not considered sufficiently material following a detailed analysis, ultimately finding that it was not in the interests of justice to grant leave.  The decision of the Court in Constellation Brands demonstrates that any new evidence must be significant, precise, and capable of affecting the result (“material”) and attempts to retroactively fill evidentiary gaps in the TMOB record will generally fail if the new evidence does not meet this criterion.

Both cases confirm our earlier view that requests for leave can result in complex and involved preliminary motions, and that the issue of leave to adduce new evidence is a threshold issue closely tied to the overall merits of the case. These decisions also make clear that requests for leave are not a rubber-stamping exercise by the Court. The Court takes its “gatekeeping” function seriously when determining whether it is in the interests of justice to grant leave.  Parties would be well-advised to “put their best foot forward” before the TMOB and not assume that they will be permitted to shore up their evidence or fill gaps on appeal.  

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