Summary trial rules introduced by Federal Court

Over the past few years the Federal Court, which hears the majority of IP cases in Canada, has implemented various new rule amendments and practice changes to ensure that IP litigation proceeds efficiently. The court's goal - as expressed in various speeches of the chief justice and reflected in a May 1 2009 practice direction - is that even the most complex cases may reach a final disposition (eg, a decision following a full trial) within two years of commencement of the proceedings.

In keeping with this goal is the recent introduction of a summary trial procedure, which was added to the Federal Courts Rules by amendments registered on December 10 2009. The amendments to the rules were published for comment in January 2009 and have been adopted in substantially the same form.

Before the amendments, the Federal Courts Rules contained a procedure for summary judgment, which was available where the court was satisfied by motion that there was "no genuine issue for trial with respect to a claim or defence", or where the court was able "on the whole of the evidence to find the facts necessary to decide the questions of fact and law". However, in several 2004 rulings, the Federal Court of Appeal adopted a narrow interpretation of the summary judgment rule, holding that credibility issues, "broadly defined", should not be decided on a summary judgment motion. Given that expert evidence will often be required in IP litigation, an issue of credibility will almost invariably arise from the competing testimony of expert witnesses called by the opposing parties. The limited application of the former summary judgment rules was a source of frustration for both the IP Bar and the court.

The rule amendments introducing summary trial are clearly designed to remedy the lack of an effective summary procedure in the Federal Court following the narrow interpretation of the summary judgment rules. Indeed, the problems with the summary judgment rules are expressly referenced in the regulatory impact analysis statement that accompanies the amendments:

"The current judicial interpretation of the summary judgment rules limits the instances in which summary judgment will be granted. The jurisprudence requires that a motion for summary judgment be dismissed where an issue of credibility arises or where there is conflicting evidence and the outcome of the motion turns on the drawing of inferences. Thus, the existing provisions for summary judgment in the Federal Court do not provide the flexibility needed to manage the court's caseload efficiently by the expeditious disposition of cases that do not require a full trial."

The new summary trial rules are modelled on similar provisions in the rules of several Canadian provincial court systems. Under the new rules, the court may direct a summary trial when, on a motion for summary judgment, it finds that there is a genuine issue for trial (eg, where issues of credibility exist). In addition, a party may bring a motion for summary trial directly.

Evidence on a summary trial may include affidavits, expert statements, admissions and discovery testimony. The court is also given broad discretion to make orders with respect to the conduct of a summary trial, and it may order witnesses or experts who have given statements to attend cross-examination before the court.

The court may dismiss the motion for summary trial on or before its hearing if the issues raised are unsuitable for summary trial or if a summary trial would not assist in the efficient resolution of the action. If the summary trial proceeds to a hearing on the merits and the court is satisfied that there is sufficient evidence for adjudication, the court may grant judgment either generally or on an issue, unless it is of the opinion that it would be unjust to decide the issues on the motion.

Overall, the court's intention is that the rule amendments will expand the circumstances in which an action may be disposed of summarily without a full trial. While there has yet to be a case decided in the Federal Court under the new summary trial rules, the experience in British Columbia - where such a procedure has existed for a number of years - has been very positive. It is expected that summary trial will prove to be a valuable tool in IP cases where the issues are relatively simple and the expense of a full trial is not justified.

Colin B Ingram and Daniel M Anthony, Smart & Biggar/Fetherstonhaugh, Ottawa

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