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
In Louis Vuitton, the Court noted that the following
factors will assist in determining whether a summary trial is
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
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
Ultimately in Louis Vuitton, the Court granted the
motion for summary trial even though there were "multiple
defendants, a complex fact pattern, numerous investigations and
affidavits, and relatively large damages awards." This
decision was likely made easier by the fact that none of the
defendants cross-examined any of the plaintiffs' affidavits,
thereby allowing the Court to draw an adverse inference, and by the
fact that none of the defendants filed any evidence of their own.
The Court ultimately awarded a total of over $1.9 million in
damages and $500,000 in punitive and exemplary damages to the
plaintiffs by way of a summary trial.
Following Louis Vuitton, the Court, in Teva Canada
Ltd. v Wyeth LLC (2011 FC 1169),allowed a motion for summary
trial to proceed.
The Court began by noting that the guiding principles of the
Rules "must be interpreted so as to secure the just, most
expeditious and least expensive determination of every proceeding
on the merits". Summary trials and summary judgments were
described as "tools" that could achieve these principles
in appropriate cases. Against this backdrop, the Court outlined
that the jurisprudence is still evolving with respect to the use of
The Court in Teva Canada outlined that the issues were
well defined in the case, and although their determination would
not resolve every issue in the action, it would allow what remains
of the action to proceed more quickly. Additionally, the facts
needed to resolve the issues on the motion for summary trial were
clearly set out in the evidence, and this evidence was not
controversial nor were there any issues of credibility. Lastly,
although the legal question posed on the motion was novel, the
Court held that it could be resolved just as easily on a summary
trial as it would otherwise have been after a full trial.
In noting in Teva Canada that the summary trial rules
are "intended to be used, not avoided", it appears that
the Court is encouraging litigants to seriously consider whether
their cases may appropriately be resolved in whole or in part by
way of motions for summary trial, even in the face of complex
facts, and/or large damages amounts.
In sum, the Court's early application of the summary trial
provisions of the Rules can only be seen as a positive development,
as litigants are now able to better assess their options for
summary disposal of their cases, thus encouraging efficient
resolution of disputes and promoting access to justice.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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