Executive Summary: Key Legal and Evidentiary Issues

• Consolidation of two trademark appeals under section 56 of the Trademarks Act was challenged on procedural grounds.

• Dispute arose over whether a binding agreement to consolidate the cases had been formed between the parties.

• Remitly objected to the use of five new affidavits from one proceeding being imported into another via consolidation.

• The court had to determine if Rule 312 (governing additional evidence) was bypassed by the consolidation order.

• Associate Judge's discretion under Rule 105 to consolidate was assessed under a highly deferential standard.

• Final judgment confirmed that consolidation was proper and dismissed concerns of procedural prejudice.

Facts and Outcome of the Case

Background and Parties Involved
The case involves Remitbee Incorporated as the applicant and Remitly, Inc. as the respondent in a dispute arising from trademark opposition decisions made by the Trademarks Opposition Board (TMOB). Remitbee, having lost in both TMOB decisions—T-1758-22 (2022 TMOB 126) and T-2621-23 (2023 TMOB 174)—appealed both to the Federal Court under section 56 of the Trademarks Act. These appeals were related to each party’s use of similar marks and the perceived likelihood of confusion.

Procedural Dispute and Consolidation
Remitbee moved to consolidate both appeals, and the Federal Court’s Associate Judge Coughlan granted the consolidation. Remitly later objected, arguing the consolidation unfairly allowed Remitbee to rely on five new affidavits from T-2621-23 in the earlier proceeding T-1758-22. Remitly claimed this circumvented Rule 312 of the Federal Courts Rules, which governs the filing of additional evidence and requires court permission.

Remitly also challenged whether there had been a genuine agreement to consolidate, despite earlier communications between legal counsel suggesting both sides were aligned in principle.

Legal Framework and Analysis
The Federal Court examined whether the Associate Judge erred in granting consolidation without explicitly addressing Rule 312. Justice Fuhrer reaffirmed that the discretion to consolidate under Rule 105 is broad and highly deferential, and concluded there was no legal or factual error requiring intervention.

The judge found that a valid agreement to consolidate did exist, as evidenced by clear communications between the parties. The decision to allow a joint record, including additional affidavits, did not breach procedural fairness because Remitly retained the opportunity to respond through cross-examination and further submissions. Additionally, the interests of judicial economy and the commonality of issues in both appeals supported consolidation.

Outcome and Costs
Justice Fuhrer dismissed Remitly’s Rule 51 motion to overturn the consolidation order. The court upheld the Associate Judge’s reasoning, including the finding that any prejudice to Remitly could be managed within the proceeding and did not warrant undoing consolidation. Remitbee was awarded $20,000 in lump sum costs, with the court noting that Remitly’s late-stage concession and procedural stance justified the enhanced cost award.