Medos Services Corporation Marathon Medical Inc. and Alexander Vlasseros (collectively the “Appellants”) appealed the judgement of the Federal Court upholding the decision of the Registrar of Trade-marks to expunge a trade-mark for non-use. In this proceeding, the Federal Court of Appeal heard two interlocutory motions by the Appellants: (1) a motion for leave to present evidence on appeal; and (2) a motion to have the appeal book prepared by the Administrator.
With respect to the motion for leave to present evidence on appeal, the Court of Appeal held that the general rule is that evidence will not be admitted on appeal unless it could not with due diligence have been presented in the court below, it is credible, and it is practically conclusive of the issues to which it is alleged to relate. Whether or not those conditions are met, the Court of Appeal held that the Court retains a residual discretion to permit evidence to be admitted on appeal if the interests of justice require. However, the Court of Appeal found no basis upon which it could conclude that the evidence met the test for admitting new evidence on appeal. Specifically, the Court of Appeal noted that the Appellants failed to establish that they could not, with due diligence, have discovered the documents in time for the Federal Court hearing. The motion was therefore dismissed with costs.
With respect to the motion to have the appeal book prepared by the Administrator, the Court of Appeal was not satisfied, based on the limited evidence submitted by the Appellants, that the Appellants lacked the skills required to complete the appeal book. The Appellants’ reasons for requesting that the Administrator prepare the appeal books (i.e. reduced resources due to summary vacation holidays, lack of resources and expertise, and the avoidance of delay and error) were not accepted by the Court of Appeal. Therefore, the motion was dismissed with costs. The Court of Appeal did, however, order an extension of time for preparing, serving and filing the appeal book.