BBM brought an application for infringement, damages for infringement, depreciation of goodwill and passing off, punitive damages, injunctive relief and delivery up. Research in Motion (RIM) initially brought a motion to strike the application on the basis that there was no jurisdiction in the Federal Court to determine these issues by way of application. The Court held that the matters should not proceed by way of application and ordered the matter to proceed by way of action, but this decision was overruled by the Court of Appeal. Consequently, RIM brought the within motion to convert the application to an action.
The Court first considered whether it was possible to bring a motion to convert an application to an action. It concluded that it is possible, jurisdiction being found either in the Court’s inherent jurisdiction to control its own process, or in Rule 3 which states that “these Rules shall be interpreted and applied so as to ensure the just, most expeditious and least expensive determination of every proceeding on its merits”. The Court then outlined factors to consider when determining whether such a conversion is appropriate and concluded based on a review of the facts of the within case that the conversion was not appropriate. The Court dismissed RIM’s motion.