The Federal Courts Rules provide a summary judgment procedure
that allows a party to prevent claims or defences that have no
chance of success from proceeding to trial. Although the summary
judgment procedures were amended a year ago, a recent decision of
the Federal Court demonstrates that summary judgment is still only
granted in the most appropriate cases.
In Concept Developments Ltd. v.
Webb, the plaintiff (Concept), a designer and
builder of homes, brought a motion for summary judgment against the
defendants, Mr. and Mrs. Webb, alleging infringement of its
registered copyright in the plans and design of one of its model
homes. The Webbs had apparently viewed Concept's model
home, but disliked Concept's quoted price to build the
house, so they subsequently took their business to another home
building company (High Grade). According to the facts (which had
not been fully established), the Webbs showed Concept's
model home design to High Grade and requested something similar for
their house, albeit with some modifications. The Webbs then drew up
what they wanted, gave that drawing to High Grade, and the house
was subsequently built as desired. Concept claimed $124,000 for its
direct loss from not building the home, as well as $40,000 for
The threshold question of actual infringement and that of how
substantial the Webbs' changes to Concept's model
design were could not be determined on the evidence. There were
also serious issues of credibility involving the Webbs'
explanation of how things transpired, the role of High Grade, and
whether any assurances of non-infringement were given by High
Grade. In addition, the measure of damages could not be established
on the evidence before the Court. As a result, the Court concluded
that these were issues that were better left to a trial judge to
weigh in the context of all the evidence.
This decision should serve as a reminder to counsel that summary
judgment will still only be granted in the clearest of cases. As
the court quoted: "It is essential to justice that claims
disclosing real issues that may be successful proceed to
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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