Credibility of evidence to be determined at full trial, rules court

In Henkel Canada Corporation v Conros Corporation, the Federal Court has refused the plaintiff's motion for summary judgment in a trademark infringement case.

Henkel Canada Corporation, owner of the LEPAGE trademark and trade name in Canada, filed a complaint with the Federal Court, seeking a permanent injunction against Conros Corporation, owner of the LEPAGE trademark in the United States. Conros Corporation had started selling clear adhesive tape in Canada with the trademark LEPAGE on the packaging, accompanied by the registered trademark sign. In response, Henkel moved for summary judgment based on various sections of the Canadian Trademarks Act. In particular, the court considered Henkel's claim with respect to Sections 7 and 20, both dealing with protection against the use of marks that are confusingly similar.

Conros submitted expert evidence to the court to the effect that the marks in question were not confusing, based mostly on the argument that the market for adhesive products was fragmented in ways that clearly distinguished the use of the respective marks. Despite recognizing the qualifications of the expert, the court found that this evidence was based "almost entirely on anecdotal and impressionistic foundations", and roundly rejected its conclusions.

The court then cited Rule 216(3) of the Federal Court Rules, which allows the court to grant a summary judgment when it is "able on the whole of the evidence to find the facts necessary to decide the questions of fact and law". However, the court also noted that it was bound by two recent decisions of the Federal Court of Appeal, to the effect that no assessment of evidence credibility can be made by the court at the stage of a motion for summary judgment. Despite the seemingly different meaning suggested by the text of the law, those decisions imply that once there is a genuine issue for trial, a court commits an error if it grants a summary judgment and does not send the matter on to trial (see MacNeil Estate v Canada and Trojan Technologies Inc v Suntec Environmental Inc).

The Henkel Case and the recent decisions by the Court of Appeal demonstrate that federal courts cannot ascertain evidentiary credibility in summary judgment proceedings. This exercise, along with the other determinations of fact and law, must therefore be made at full trial.

Frederick Pinto, Léger Robic Richard, Montreal