Kelly Properties v. Canadian Council of Professional Engineers
The Federal Court judge committed a palpable and overriding error in finding the additional affidavits would have materially affected the TMOB outcome; the affidavits offering expert opinion on the Alberta statute and association guidelines were irrelevant because the statute was already in evidence; the Federal...
Source-derived case information.
- Citation
- 2013 FCA 287
- Parties
- Appellant: Kelly Properties; Respondent: Canadian Council of Professional Engineers
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 3 December 2013
- Procedural Posture
- Appeal to Federal Court of Appeal From Federal Court Judicial Review of Trade Marks Opposition Board Decision / Judgment on Appeal (federal Court of Appeal)
- Outcome
- Appeal allowed; judgment of the Federal Court set aside; on proper review the appeal from the TMOB is dismissed with costs
- Legal Topics
- Trademark Opposition, Standard of Review (reasonableness), Admissibility of Fresh Evidence on Judicial Review, Expert Evidence on Statutory Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelly Properties
Appellant
Canadian Council of Professional Engineers
Respondent
Procedural Posture
Appeal to Federal Court of Appeal From Federal Court Judicial Review of Trade Marks Opposition Board Decision / Judgment on Appeal (federal Court of Appeal)
Legal Issues
- 1 Whether the Federal Court judge erred in admitting and giving weight to additional affidavits not before the TMOB
- 2 Whether expert opinions on statutory interpretation and association guidelines are relevant on judicial review of an administrative decision
- 3 What standard of review (reasonableness) should apply to the TMOB decision
Ratio Decidendi
The Federal Court judge committed a palpable and overriding error in finding the additional affidavits would have materially affected the TMOB outcome; the affidavits offering expert opinion on the Alberta statute and association guidelines were irrelevant because the statute was already in evidence; the Federal Court should have applied a reasonableness standard to the TMOB decision; the TMOB decision was not unreasonable and must be upheld.
Court Disposition
Appeal allowed; judgment of the Federal Court set aside; on proper review the appeal from the TMOB is dismissed with costs
Orders
- Appeal allowed with costs
- Judgment of the Federal Court set aside
Full Case Text
Judgment text and source record
1 paragraphs
Kelly Properties v. Canadian Council of Professional Engineers Court (s) Database Federal Court of Appeal Decisions Date 2013-12-03 Neutral citation 2013 FCA 287 File numbers A-19-12 Decision Content Date: 20131203 Docket: A-19-12 Citation: 2013 FCA 287 CORAM: PELLETIER J.A. DAWSON J.A. TRUDEL J.A. BETWEEN: KELLY PROPERTIES Appellant and CANADIAN COUNCIL OF PROFESSIONAL ENGINEERS Respondent Heard at Ottawa, Ontario, on December 3, 2013. Judgment delivered from the Bench at Ottawa, Ontario, on December 3, 2013. REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A. Date: 20131203 Docket: A-19-12 Citation: 2013 FCA 287 CORAM: PELLETIER J.A. DAWSON J.A. TRUDEL J.A. BETWEEN: KELLY PROPERTIES Appellant and CANADIAN COUNCIL OF PROFESSIONAL ENGINEERS Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on December 3, 2013). PELLETIER J.A. [1] We are of the view that the Trial judge committed a palpable and overriding error when he found that the additional evidence tendered by the respondents would have materially affected the outcome before the Trade Marks Opposition Board (TMOB) had it been before the hearing officer. [2] The thrust of the evidence of Mr. Neth and Mr. McMartin was to interpret the scope and effect of the Alberta Engineering and Geoscience Professions Act, R.S.A. 2000, c. E-11, the legislation which governs the practice of engineering in Alberta. This legislation was in evidence before the hearing officer. [3] The opinion of the two witnesses as to the interpretation of the statute is irrelevant. Similarly, the Guidelines used by Association of Professional Engineers and Geoscientists of Alberta (the Association) simply represent the Association’s opinion as to the meaning of the Alberta statute and are equally irrelevant. [4] The additional affidavits, those of Ms. Roberts and Messers. Haddock and Barbeau added no new material facts to the record. As a result, The Federal Court judge ought to have reviewed the TMOB’s decision or a standard of reasonableness. [5] Despite Mr. Marcera’s spirited argument, we have not been persuaded that the decision of the TMOB is unreasonable. In particular, the TMOB was aware of the affect of the trademark upon first impression as indicated in paragraphs 71 and 79 of its decision. [6] As a result, the appeal will be allowed with costs, the judgment of the Federal Court will be set aside and giving the judgment that the Federal Court ought to have given, the appeal from the TMOB will be dismissed with costs. "J.D. Denis Pelletier" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-19-12 STYLE OF CAUSE: KELLY PROPERTIES v. CANADIAN COUNCIL OF PROFESSIONAL ENGINEERS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: December 3, 2013 REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A. DAWSON J.A. TRUDEL J.A. DELIVERED FROM THE BENCH BY: PELLETIER J.A. APPEARANCES: Scott Miller Adam Tracey For The Appellant KELLY PROPERTIES John Macera For The Respondent CANADIAN COUNCIL OF PROFESSIONAL ENGINEERS SOLICITORS OF RECORD: MBM Intellectual Property Law Ottawa, Ontario For The Appellant KELLY PROPERTIES MACERA & JARZYNA Ottawa, Ontario For The Respondent CANADIAN COUNCIL OF PROFESSIONAL ENGINEERS