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Preliminary Issues on Motions for Summary Adjudication in Federal Court

The Federal Court of Appeal recently took the opportunity to clarify the procedure and criteria for determining whether a summary judgment motion is “appropriate”. Even 10 years after the Federal Courts Rules were amended to include summary judgment and trials, the Federal Court of Appeal noted that procedure “is rather unclear”.

In 2009, the Federal Courts Rules were amended to include motions for summary judgment and summary trials. For summary judgment, the rules (see Rule 215) provide that the Court shall grant judgment where the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence. Even if there is a genuine issue of fact or law for trial, the Court may determine the issue by way of summary trial.

In ViiV Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122, the Federal Court of Appeal considered when summary determination is appropriate, particularly when a responding party has moved to quash the motion for summary trial.

At the lower Court, the defendant in the patent infringement proceeding brought a motion for summary trial. The plaintiff patentee objected to the summary procedure by bringing a motion to adjourn or quash (see 2020 FC 11). The Federal Court dismissed this motion and allowed the summary trial to proceed. After the hearing of the motion for summary trial, the Federal Court dismissed the patent infringement proceeding on the basis of non-infringement (see 2020 FC 486).

A key issue related to when a summary trial is appropriate and when can it be preliminary quashed.

The Federal Courts Rules merely states (see Rule 213(a)) that a motion for summary judgment or trial may be brought “any time after the defendant has filed a defence but before the time and place for trial have been fixed.” There are no provisions in the Rules for a preliminary assessment of whether a particular motion for summary judgment or trial is appropriate in the context of the proceeding.

The Federal Court of Appeal stated (at para 20 and 29):

The operative principles, above, suggest that in rare circumstances motions to quash or to adjourn a motion can be brought. When brought early and dealt with quickly before time is wasted and the resources of the Court and the parties are squandered, they can proactively advance the objectives of Rule 3 and stop harmful litigation conduct in its tracks.

Where a motion for summary judgment or summary trial or its timing seems problematic in the sense described above, a motion to quash or adjourn may be brought subject to the qualifications set out above. Absent such a motion, the Court—acting on its own initiative in accordance with the principles set out above—can invite submissions and then decide the issue whether a motion for summary judgment or summary trial should be entertained at all or should be adjourned. Quite aside from this, in dealing with any motion for summary judgment or summary trial, the Court has a wide discretion governed by the objectives of Rule 3 concerning scheduling and the manner in which the motion is to be prosecuted, defended and argued.

The Court cautioned that a motion to quash is not the place to raise substantive defences to the summary judgment or summary trial motion, nor should the motion to quash itself require significant time or resources from the parties or Court. The Federal Court of Appeal also noted that the Court itself can refuse to entertain a problematic summary judgment or summary trial motion and has significant discretion on the scheduling and manner in which the motion will proceed and be argued.

At the hearing on the merits of a motion for summary judgment or summary trial, the Court still must consider two aspects: whether there is no genuine issue for trial (for summary judgment) or sufficient evidence for adjudication (for summary trial), and if so, enter an appropriate order granting or dismissing the motion for summary adjudication.

For example, a moving party could fail on their motion for summary judgment either because the hearings judge decides that there is a genuine issue for trail, or could decide that there is no genuine issue but find in favour of the responding party on the merits.

In the case before it, the Federal Court of Appeal found that the lower Court (see 2020 FC 11) had erred when it had said that the Court had no jurisdiction to quash or adjourn a pending motion for summary adjudication but ultimately agreed with the motions judge that this was an appropriate case for summary determination and that there were no grounds for the Federal Court of Appeal to set aside the grant of summary judgment.

With the increasing appetite of the Federal Court and parties to intellectual property proceedings to use summary determination (see earlier columns Summary Determination of Claim Construction from May 2020 and Summary Resolution of Intellectual Property Cases from February 2016), the Federal Court of Appeal has provided welcome guidance on when and how such motions may be preliminary challenged.

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