Court denies self-represented litigant leave to adduce new evidence of trade-mark use on appeal

Medos Services Corporation, its principal Alexander Vlasseros, and a related corporation, Marathon Medical Inc., appealed the judgment of the Federal Court that upheld the decision of the Registrar of Trade-Marks to expunge a trade-mark for the mark MEDOS for non-use pursuant to section 45 of the Trade-Marks Act.  The mark MEDOS was for services being the “operation of a wholesale and retail business dealing in the distribution and sale of medical and healthcare supplies and equipment through multiple distribution centers”.  The appellants brought two interlocutory motions:  (1) a motion under Rule 351 of the Federal Courts Rules for leave to present evidence on appeal; and (2) a motion under Rule 343 to have the appeal book prepared by the Administrator.  The Court of Appeal dismissed both motions.

Motion to present new evidence on appeal

Mr. Vlasseros, who is not a lawyer, represented himself in the Federal Court and was given leave in the Federal Court to represent his Medos and Marathon corporations.  In the Court of Appeal, Mr. Vlasseros represented himself (as is his right) and the two corporate appellants.  However, Mr. Vlasseros did not have the right to represent the two corporate appellants without first obtaining leave pursuant to Rule 120 from a Court of Appeal judge (which he did not seek).  Despite the two corporate appellants being in breach of Rule 120, the Court of Appeal held that compliance with Rule 120 had been waived under Rule 55, as several steps has been taken in the appeal with no objection from the respondent.

With respect to evidence relating to use of the MEDOS mark, Mr. Vlasseros originally proffered four forms of evidence:

1. a series of telephone bills from Rogers addressed to Medos Services Corporation;
2. correspondence with foreign suppliers indicating that Mr. Vlasseros was seeking business, but there was no mention of the MEDOS mark;
3. receipts addressed to Mr. Vlasseros, Medos Services Corporation and Marathon Medical Inc. for rent of office, warehouse and repair space with no evidence of the MEDOS name being used for advertising purposes; and
4. invoices from Marathon Medical Inc. to the Société de l’assurance automobile du Québec (SAAQ), with respect to certain patients.  The invoices covered post-sale maintenance such as the repair of hospital beds, hydrostatic safety tests, refills, masks and tubing, and annual inspections.

The Federal Court found no evidence of use of the MEDOS mark by anyone within the three years in question.  On appeal, Mr. Vlasseros sought to introduce new evidence and brought a motion for leave to present evidence on appeal.  The Court of Appeal applied the general rule 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 issue to which it is alleged to relate.  Whether or not those conditions are met, the Court retains a residual discretion to permit evidence to be admitted on appeal if the interests of justice require.  Here, the Court of Appeal held the appellants failed to establish that they could not, with due diligence, have discovered the documents in time for the Federal Court hearing, or that the documents are credible and practically conclusive of the main issue.  The motion was dismissed with costs.

Motion to have the appeal book prepared by the Administrator

The Appellants also requested that the appeal book be prepared by the Administrator, in part, because “summer vacation holidays have reduced resources available to the Appellants”.  The Court disagreed noting that the contents of the appeal book had already been settled by Court Order and that it should be “relatively simple” to prepare the appeal book consisting of documents that should already be in the Appellants’ possession or that would be readily obtainable from the Court Registry.

A copy of Court of Appeal’s Reason for Order may be found here