Summary Trials of IP Cases Gaining Traction in the Federal Court of Canada

21 November 2011

On December 10, 2009, rules 213-219 of the Federal Courts Rules (the Rules) were amended to introduce summary trials as a new tool for disposition of cases prior to a full-blown trial. The aim of the new summary trials was to promote efficient, and therefore less expensive, litigation in the Federal Court of Canada, all while ensuring that justice is achieved.

Although the Court may have been initially reticent to embrace the novel summary trial mechanism, two recent decisions seem to suggest that any reservations are disappearing. The Court has breathed life into these new Rules to dispose of actions in an efficient manner where a full trial is not required on all of the issues at stake.

Louis Vuitton Malletier SA v Singga Enterprises (Canada) Inc. (2011 FC 776) was the first of these two decisions, which was rendered on June 27, 2011 and dealt with an alleged infringement of the plaintiffs' trade-mark and copyright. In granting the plaintiffs' motion for summary trial, the Court relied on jurisprudence from British Columbia, where summary trials have been used for over 25 years. Indeed, the summary trial provisions of the Federal Courts Rules were modelled on the corresponding rules in British Columbia's Supreme Court Rules.

In Louis Vuitton, the Court noted that the following factors will assist in determining whether a summary trial is appropriate:

  • The amount involved;
  • The complexity of the matter;
  • The urgency of the matter;
  • Any prejudice likely to arise by reason of delay;
  • Cost of taking the case forward to a full trial in relation to the amount involved; and
  • Any other matters that arise for consideration.

Moreover, the Court in Louis Vuitton cited the case of Wenzel Downhole Tools v. National-Oilwell Canada Ltd (2010 FC 966), which acknowledged that "it is possible that a summary trial could be found to be efficient and effective procedure in a patent infringement proceeding", and noted the following additional factors for deciding the suitability of a motion for summary trial:

  • Is the litigation extensive and will the summary trial take considerable time;
  • Is credibility a crucial factor and have the deponents of the conflicting affidavits been cross-examined;
  • Will the summary trial involve a substantial risk of wasting time and effort and producing unnecessary complexity; and
  • Does the summary trial process result in litigating in slices.

Ultimately in Louis Vuitton, the Court granted the motion for summary trial even though there were "multiple defendants, a complex fact pattern, numerous investigations and affidavits, and relatively large damages awards." This decision was likely made easier by the fact that none of the defendants cross-examined any of the plaintiffs' affidavits, thereby allowing the Court to draw an adverse inference, and by the fact that none of the defendants filed any evidence of their own. The Court ultimately awarded a total of over $1.9 million in damages and $500,000 in punitive and exemplary damages to the plaintiffs by way of a summary trial.

Following Louis Vuitton, the Court, in Teva Canada Ltd. v Wyeth LLC (2011 FC 1169),allowed a motion for summary trial to proceed.

The Court began by noting that the guiding principles of the Rules "must be interpreted so as to secure the just, most expeditious and least expensive determination of every proceeding on the merits". Summary trials and summary judgments were described as "tools" that could achieve these principles in appropriate cases. Against this backdrop, the Court outlined that the jurisprudence is still evolving with respect to the use of summary trials.

The Court in Teva Canada outlined that the issues were well defined in the case, and although their determination would not resolve every issue in the action, it would allow what remains of the action to proceed more quickly. Additionally, the facts needed to resolve the issues on the motion for summary trial were clearly set out in the evidence, and this evidence was not controversial nor were there any issues of credibility. Lastly, although the legal question posed on the motion was novel, the Court held that it could be resolved just as easily on a summary trial as it would otherwise have been after a full trial.

In noting in Teva Canada that the summary trial rules are "intended to be used, not avoided", it appears that the Court is encouraging litigants to seriously consider whether their cases may appropriately be resolved in whole or in part by way of motions for summary trial, even in the face of complex facts, and/or large damages amounts.

In sum, the Court's early application of the summary trial provisions of the Rules can only be seen as a positive development, as litigants are now able to better assess their options for summary disposal of their cases, thus encouraging efficient resolution of disputes and promoting access to justice.


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