Litigation — Year In Review

In 2015, Canadian courts issued decisions and practice advisories to the profession that affected the landscape of intellectual property litigation pre-trial practice, expert evidentiary requirements, the standard of review for patent construction, and jail time for violating court orders.

Below are our summaries of key decisions and advisories that will impact intellectual property litigation in Canada.

Proportionality in Discovery

In June 2015, the Federal Court issued a Notice to parties and the profession entitled "Case Management: Increased Proportionality in Complex Litigation before the Federal Court". The Notice outlines ten considerations for lawyers to integrate into their practice before the Federal Court to ensure improved case management, earlier trial judge involvement, streamlining of discovery, limited motions and appeals, and earlier settlement discussions:

Earlier trial judgment management to ensure faster resolution of interlocutory matters and so parties are ready for trial at the fixed trial date. Short notice wait list for earlier trial dates for parties seeking an early trial. No demonstrative evidence will be permitted at trial unless the parties have exchanged it 60 days before trial, and made any objections 45 days prior to trial. Limits on documentary discovery to improve proportionality including the use of discovery plans and identifying who will be examined and what documents will reviewed. Limits on oral discovery will entitle the parties to one day of discovery each per week of trial; follow up examinations are to be restricted to one day per party. Refusals motions will not be heard until discovery is complete, and will be limited to one hour per day of discovery. Unsuccessful or unreasonable parties will be subject to significant cost sanctions. Questions may not be taken under advisement and should be answered unless "clearly improper or prejudicial". Consideration is being given to limiting appeals of interlocutory orders of Prothonotaries. Enforcement of the limit on the number of experts per party (no more than 5). Science and technology primers prior to trial may be required to assist the Court to better understand complex science and technology. Early consideration of mediation of all actions. These objectives of the Notice are also addressed by the Court in the following Federal Court decisions:

Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2015 FC 1292 at 59-60, 67-68; Bard...