A Coming Of Age For The Federal Court Summary Trial In Intellectual Property Litigation

• Published date: 07 December 2022
• Subject Matter: Intellectual Property, Copyright, Patent, Trademark
• Law Firm: Bereskin & Parr LLP
• Author: Mr Joshua W. Spicer and Nyrie Israelian

DESPITE A TEPID INITIAL RESPONSE, RECENT POPULARITY SHOWS PEOPLE ARE EMBRACING THE SUMMARY TRIAL AS A MORE AFFORDABLE VEHICLE TO HAVE EVEN COMPLEX ISSUES DECIDED EARLY

2022 hasseen a significant increase in the number of IP cases being decided under the Federal Court's summary trial provisions. Between 2009, when the summary trial rules were introduced, and 2021, on average the court decided less than two IP cases each year. So far in 2022, it has issued no less than eight decisions from motions for summary trial in actions for patent, trademark, and copyright infringement. Despite a somewhat tepid welcome, summary trials have from the outset proven an effective tool for the efficient adjudication of discrete and, in many cases, dispositive IP issues. Recent popularity shows that, whatever reluctance may have existed, parties are embracing the summary trial as a more affordable vehicle to have even complex issues decided early

Like summary judgment, summary trial provides an alternative to a full trial and is consistent with overarching judicial policy of promoting timely and affordable access to the civil justice system.1 However, unlike summary judgment where a moving party must show a case is so doubtful that it does not deserve consideration by the trier of fact,2 the onus of proof on a motion for summary trial is on a balance of probabilities.3 The rules provide that if the court is satisfied that there is sufficient evidence for adjudication - regardless of the amounts involved, the complexities of the issues, and the existence of conflicting evidence - the court may grant judgment either generally or on an issue, unless the court is of the opinion that it would be unjust to decide the issues on the motion.4 A party bringing a motion for summary trial may therefore face the risk of its claim or defence being dismissed, whereas a failed motion for summary judgment simply means the case continues to trial.

Although the rules require the court to dismiss a motion if the issues raised are not suitable for summary trial,5 challenges presented by the complexity of IP cases and conflicting fact and expert testimony have not dissuaded the court from proceeding. Across all areas of IP, judges have remarked on the value of cross-examination before the court as a tool to resolve credibility issues and disputed questions of fact on motions for summary trial.6 As the court observed in Vidéotron Ltée v. Technologies Konek Inc., "The parties provided affidavits and...