Summary Trials Of IP Cases Gaining Traction In The Federal Court Of Canada

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...