• Appeal Dismissed: Admissibility of Hearsay Found To Be Best Left To the Applications Judge
  • November 22, 2013
  • Law Firm: Borden Ladner Gervais LLP - Toronto Office
  • Avon Products Inc. v. Moroccanoil Israel Ltd., 2013 FC 1137

    Moroccanoil has appealed a Prothonotary’s decision to not strike 58 paragraphs from an affidavit filed by Avon, having previously argued the paragraphs are inadmissible hearsay. The appeal was dismissed.

    Avon is seeking to expunge the trade-mark MOROCCANOIL for hair care products. Avon has alleged the mark was not registrable at the date of registration and it was not distinctive at the time that proceedings bringing into question its validity were commenced. Avon included hearsay statements from telephone calls as a part of its affidavit evidence.

    The Prothonotary had concluded that the judge hearing the application on the merits would be the best person to determine whether the hearsay was admissible and to decide how much weight the statements should be afforded. The appellate Judge determined that the decision was not based upon a wrong principle or upon a misapprehension of the facts, and therefore declined to intervene.