The Train Has Left The Station: The Federal Court Of Appeal Confirms That Opposition Won't Derail A Summary Trial

• Published date: 24 June 2021
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Patent, Trials & Appeals & Compensation
• Law Firm: Lenczner Slaght LLP
• Author: Andrew Moeser and Jim Lepore

As part of our series on summary adjudication, we previously commented on the Federal Court's recent use of a summary trial to resolve a patent infringement dispute. The abbreviated procedure of a summary trial addresses many of the Federal Court's traditional concerns with summary judgment (e.g., lacking live evidence).

Where the parties agree to adjudication through summary trial, the Federal Court has readily resolved patent infringement disputes in this way (see Cascade Corporation v Kinshofer GmbH). However, the subject of our previous comment - ViiV Healthcare Company v Gilead Sciences Canada (the "Summary Trial") - demonstrated that the Federal Court is also willing to resolve disputes using a summary trial procedure when faced with major opposition from one of the parties (in this case the plaintiffs).

The Summary Trial resulted in a finding of non-infringement and the dismissal of the plaintiffs' claim. Consistent with the plaintiffs' previous opposition to the Federal Court's procedure, they appealed the Summary Trial, including appealing the dismissal of their preliminary motion that sought to adjourn the summary trial (which the plaintiffs styled as a "meta-motion").

The Federal Court of Appeal's decision in ViiV Healthcare Company v Gilead Sciences Canada, Inc. (the "Appeal") affirms that summary trial may be appropriate for resolving patent infringement actions and provides guidance to litigants considering summary adjudication.

The Summary Trial, the Appeal, and the implications flowing from these decisions are set out in greater detail below. As a top line:

• A party may bring a motion to quash or adjourn a motion for summary judgment or summary trial in "rare circumstances," but it must be brought in a timely fashion and cannot raise substantive defences.
• The Federal Court of Appeal identified three key principles for interpreting Rules 213-216 of the Federal Courts Rules (the "Rules"), which relate to summary judgment and summary trial. First, the practice and procedure of the Federal Court draw upon (i) the Rules and (ii) the Court's plenary powers. Second, a presumption that parties are free to prosecute and defend their cases as they see fit. Third, the general considerations of efficiency and fairness, which are set out in Rule 3 of the Rules.
• In deciding whether summary adjudication is appropriate, the Federal Court of Appeal confirmed its view that the Federal Court and Federal Court of Appeal's pre-Hryniak jurisprudence remains...