Federal Court Affirms Vested Right To File Additional Evidence Without Leave For Certain Trademark Appeals

On May 19, 2026, the Federal Court of Canada (the Court) issued its decision in Green Gourmand Foods Inc. v Canada Bread Company, Limited, 2026 FC 489, dismissing Canada Bread Company Ltd.’s (Canada Bread) motion to strike the new evidence submitted by Green Gourmand Foods Inc. (Green Gourmand) from the record.

Green Gourmand filed its Notice of Application (NOA) on March 31, 2025, seeking an order to set aside the Trademarks Opposition Board’s refusal of the application for ALLERGY SMART. On April 1, 2025, the new enactment of section 56(5) of the Trademarks Act (the Act) entered into force, introducing a requirement to obtain leave from the Court to adduce new evidence on appeal.

Green Gourmand sought to introduce new affidavit evidence on May 15, 2025, arguing the right to file additional evidence without leave vested when the appeal was commenced. Canada Bread argued that the new leave requirements should apply to the affidavit because the evidence itself was filed after the new requirements came into force.

The Court considered two recent decisions on the new leave requirements for evidence under the Act: Yat Sun Food Products Ltd v Griffith Foods International Inc (Yat Sun Food), and Big Duck Games, LLC v X-Flow Ltd (Big Duck Games), as previously reported by the E-TIPS® Newsletters here and here, respectively.

In Yat Sun Food, the date of vesting of the right to file additional evidence without leave was not determined because the evidence was filed prior to the new provisions of the Act entering into force. In Big Duck Games, the NOA was filed on March 31, 2025, while the additional evidence was filed later, and the Court in that case determined that no leave was required as the right to file without leave had vested on March 31, 2025.

The Court held that the facts in Big Duck Games were very similar, if not identical, to those in this matter. The Court also found that it was bound by horizontal stare decisis and that none of the conditions precedent to depart from that principle apply here.

Therefore, the Court determined that Green Gourmand’s right to file additional evidence without seeking leave vested on March 31, 2025, and accordingly dismissed the motion to strike the evidence.

Summary By: Amy Ariganello