A rare five-judge panel of the Federal Court of Appeal has
abandoned the so-called Aqua-Gem standard of review of the
discretionary decisions of prothonotaries, in favour of the
standard established by the Supreme Court of Canada in
Housenv Nikolaisen, 2002 SCC 33
(Housen). In Hospira Healthcare Corporation v The
Kennedy Institute of Rheumatology, 2016 FCA 215
(Hospira), the Court of Appeal also clarified that the
Housen standard applies in reviewing the discretionary
decisions of motions judges. The Hospira decision brings
welcome simplicity and coherence to the review of discretionary
decisions in the Federal Courts.
Under Aqua-Gem, discretionary decisions of
prothonotaries were subject to a de novo review on appeal
if the question to be decided was vital to a final issue in the
case. All other prothonotary decisions were subject to reversal
only if "clearly wrong," in the sense of being based upon
a wrong principle or upon a misapprehension of the facts.
Hospira simplifies the standard of review of
prothonotary decisions by eliminating the dual Aqua-Gem
standards, and by creating uniformity in the review of
discretionary decisions made by prothonotaries and judges. The
correctness standard will apply to questions of law, and the
palpable and overriding error standard will apply to questions of
Hospira will have the greatest impact on prothonotary
decisions that address questions vital to the final issue of a
case. These discretionary decisions will now be reviewed on the
Housen standard, and will only be varied on appeal if the
prothonotary made an error of law, or a palpable and overriding
error in a finding of fact. Hospira will likely result in
still greater deference being afforded to prothonotaries charged
with the case management of the bulk of intellectual property cases
pending in the Federal Court.
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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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