Federal Court Confirms Cross-Examination Of Affidavits Is Not Available On Appeal From TMOB Opposition Decisions

On September 11, 2026, the Federal Court (the Court) issued its decision in Bonafide Health, LLC v Bonafide Health & Drugs Limited, 2026 FC 1144, dismissing a motion by Bonafide Health, LLC’s (Bonafide) for leave to cross-examine on an affidavit that Bonafide Health & Drugs Limited (BHD) filed before the Trademarks Opposition Board (the Board), and for leave to file new evidence.

Bonafide opposed BHD’s application for BONAFIDE & Design (the Mark), alleging that the Mark was confusing with its trademarks and trade name. Bonafide did not cross-examine BHD’s affiant during the opposition proceeding.  The Board rejected the opposition, finding that Bonafide had not met its initial evidential burden to support its grounds of opposition.

The Court considered whether a party can obtain leave to cross-examine on an affidavit that was filed with the Board and rely on the transcript as new evidence in the appeal.

The Court ultimately dismissed the request for leave to cross-examine on the basis that an affidavit filed before the Board does not become an affidavit filed in the Federal Court merely because the administrative record is transmitted to the Court on appeal. The Court relied on the Federal Court of Appeal’s decision in Meredith & Finlayson, Meredith & Finlayson v Canada (Registrar of Trade Marks), 1991 CanLII 14352, 40 CPR (3d) 409 (FCA), which held that the Court has no authority to order cross-examination on an affidavit filed in proceedings before the Board (or “another tribunal”). 

The Court rejected Bonafide’s argument that the proposed cross-examination and resulting transcript could qualify as “additional evidence” under subsection 56(5) of the Trademarks Act.  Justice McHaffie noted that “[i]t cannot be plausibly argued that Parliament, by implementing the leave requirement to narrow the circumstances in which new evidence could be filed on appeal, intended to expand the nature of the evidence that a party could file. […] The question is therefore not one of leave to file new evidence, but one going to the very availability of cross-examination.”

Regarding Bonafide’s request for leave to introduce two new affidavits on appeal, the Court concluded neither affidavit could have materially affected the Board’s decision and that it was not in the interests of justice to grant leave to file new evidence.

Accordingly, the Court dismissed Bonafide’s motion.

Summary By: Uday Bahal