First Application of Vavilov Standard of Review to an Opposition Decision Appeal by the Federal Court

On March 12, 2020, Justice Kane of the Federal Court broke new ground, applying the new Vavilov standard of review approach to a Trademark Opposition Board decision appeal for the first time in Pentastar Transportation  Ltd v FCA US LLC. The applicant argued before the Federal Court that the Trademark Opposition Board had not correctly considered crucial evidence thereby rendering the findings in the opposition decision illogical, and had failed to explain why it made certain findings. The Board had held, inter alia, that the applicant failed to meet its evidential burden to prove the respondent lacked a genuine intention to use the mark at issue.

The Supreme Court of Canada established in Vavilov that reasonableness is the presumptive standard of review for administrative decisions. That presumption is rebutted when the enabling statue provides for a statutory right of appeal, in which case, the appellate standard of review applies. Section 56 of the Trademarks Act provides a statutory right of appeal to the Federal Court of Registrar decisions. In this case, the Federal Court held that to give effect to Parliament’s expressed intention in the Act, and in view of Vavilov, the Board’s decision was subject to the appellate standard of review.