Canada’s Federal Court of Appeal: Federal Court Must Consider Fresh Evidence Submitted in Appeals of Opposition Board Decisions

In Cathay Pacific Airways Limited v Air Miles International Trading BV, 2015 FCA 253, the Canadian Federal Court of Appeal (FCA) overturned a decision of the Federal Court (FC) holding that the FC did not need to review additional evidence submitted by a trade-mark applicant in a judicial review of a Trade-mark Opposition Board (TMOB) ruling.  The Trade-marks Act allows a party to submit fresh evidence on judicial review.  Depending on the probative value of this evidence, the FC may proceed by way of a fresh hearing on the merits, rather than a simple judicial review of the TMOB decision.

The FCA held that the Trade-marks Act requires the FC to consider fresh evidence filed in a judicial review of a TMOB decision, even where the FC ultimately decides in favour of the party submitting the evidence, since “[w]hat may be surplus to requirements for one party may be critical to the outcome of another.” Further, if the FCA determines that the FC erred in a manner that justifies intervention, the absence of the FC’s assessment of fresh evidence would militate towards the FCA returning the matter to the FC for redetermination, rather than the FCA exercising its discretion to award judgment.

The FCA also found that the FC erred by re-weighing the evidence that was before the TMOB, which resulted in the FC reviewing the TMOB decision on a correctness standard. According to the FCA, the proper question on review is whether or not a decision-maker’s conclusion falls within the range of acceptable and defensible outcomes, not whether the evidence would support another conclusion.