Kelly Properties v. Canadian Council of Professional Engineers, 2013 FCA 287

The Court found that additional evidence provided by the Respondents would have materially affected the outcome at the Trade-marks Opposition Board (Board). The Court of Appeal held that the Court committed a palpable and overriding error in making this finding. In particular, the Court of Appeal found that the evidence of two witnesses about the interpretation of the Engineering and Geoscience Professions Act was irrelevant, the additional affidavits added no new material facts compared to what was before the Board, and the Board’s decision was not unreasonable. The appeal was allowed.