While summary trial motions have been a tool available to Federal Court litigants to resolve intellectual property (and other) disputes for more than a decade, they were given little attention. However, in 2022 their use gained significant traction (at least 9 decisions compared with a total of 20 over the previous decade), as litigants continue to seek more timely and cost-effective ways to have their IP disputes adjudicated. It is anticipated as litigants and counsel continue to become more comfortable with the process, its use will continue to rise.
Before 2009, the only mechanism to have the Federal Court substantively and summarily decide an action was by way of summary judgment motion. However, the utility of summary judgment motions is quite limited, as summary judgment is only available where the Court is satisfied that there is “no genuine issue for trial with respect to a claim or defence”, and jurisprudence has held credibility issues should not be decided on a summary judgment motion. Intellectual property disputes invariably involve competing expert evidence, which requires the Court to make assessments of credibility, effectively ruling out summary judgment motions as an effective tool.
In 2009, in response to this lack of an effective summary disposition procedure, the Federal Courts Rules were amended to provide for “summary trial” motions. The procedure provides a summary alternative to a full trial, with the goal of providing timely and affordable access to the justice system.
Unlike summary judgment where the question before the Court is whether there is a genuine issue for trial (a very high threshold to meet), the Court hearing a motion for summary trial—assuming there is sufficient evidence to adjudicate the matter—may grant judgment on the merits, applying a balance of probabilities standard, regardless of the amounts involved, the complexity of the matter, or the existence of conflicting evidence, unless it is of the opinion that it would be unjust to decide the issues on the motion.
While the Court must dismiss a summary trial motion if the issues raised on the motion are not suitable for summary trial, to date, the Federal Court has not been deterred from deciding IP cases notwithstanding technical complexities and conflicting expert evidence. For example, the Court has determined issues of technically complex patent infringement and validity, copyright infringement, as well as passing off and trademark infringement by way of summary trial. To address the issue of conflicting evidence, the Rules expressly provide that the Court may order an affiant to appear before the Court for cross-examination, which assists the Court in assessing witness credibility.
The recent significant uptick in use of summary trial motions is a welcomed trend in IP litigation. Too often the time, resources and costs associated with IP litigation are a barrier to those looking to enforce or defend their rights. The summary trial provisions provide a more affordable and timely mechanism for IP litigants to resolve their disputes, and there is every reason to believe that the trend will continue.
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